A  SELECTION 


LEADING  CASES  IN  EQUITY, 


BY 

FREDERICK    THOMAS    WHITE 

OWEN  Navies  tudor, 

OF   THE   MIDDLE   TEMPLE,   ESQRS.,   BARKISTERS-AT-LAW. 

CONTAINIXG  REFERENCES  TO  AMERICAN  CASES, 

BY   J.  I.  CLARK   HARE    AND    H.  B.  WALLACE. 

WITH  ADDITIOXAL  XOTES  AXD  REFERENCES  TO  AMERICAN  DECISIONS, 
BY  J.  I.  CLARK  HARE. 

iljiri)  American,  from  the  ^m\\ii  %mM  OEbition. 

IN     THREE     VOLUMES. 

YOL.  II. 


PHILADELPHIA: 

T.  &  J.  W.  JOHNSON  &  CO., 
LAW    BOOKSELLERS    AND    PUBLISHERS, 

Xo.     5  35     CHESTNUT     STREET. 
1  8  5  9. 


/ 


T 

\A/^-833^e 


V.  1 


Entered,  acrording  to  Act  of  Congress,  iu  the  year  1S59, 

BY    J.    I.    CLARK    HAUE, 

In  the  Clerk's  Office  of  the  District  Court,  for  tlie  Eastern  District  of  Pennsjlvrtnia. 

Entered,  according  to  Act  of  Congress,  in  the  year  1852, 

BY    H.    B.    WALLACE, 

In  the  Clerk's  Office  of  the  District  Court,  for  the  Eastern  District  of  l'(iins\iv:inia. 

Kntered,  according  to  Act  of  Congress,  in  the  year  1840, 

BY    T.    &    J.   W.    JOHNSON', 

In  the  Clerk's  Office  of  tlie  District  Court,  for  the  Eastern  District  of  IVniisylvania. 


Hf,K  k    5|-ELR0r,    PR'H, 
LODGE  STREET. 


LIST  OF  CASES  REPORTED. 


The  pages  referred  to  are  those  between  brackets  [  ]. 

Agar  v.  Fairfax,  (Partition,)        .....  374 

Aldrich  v.  Cooper,  (Marshalling,)  .  .  .  .56 

AsHBURNER  V.  M ACQUIRE,  (Specific  legacy — Ademption,)  .             .  229 

Basset  v.  Nosworthy,  (Purchase  for  valuable  consideration  with- 
out notice,)     .......  1 

Blandy  v.  Widmore,  (Performance  of  covenant  to  leave  money  by 

partial  intestacy,)        ......  347 

Chancey's  Case,  (Satisfaction  of  a  debt  by  a  legacy,)           .             ,  31S 

Hooley  v.  Hatton,  (Cumulative  legacies — Repetition  of  legacies,)  285 

Howe   v.   Dartmouth,    (Earl    of,)    (Conversion   of    residue   be- 
queathed to  persons  in  succession,)     .             .             .             .  262 

Le  Neve  v.  Le  Neve,  (Notice,)     .  .  .  .  .23 

Pye,  Ex  parte,  (Satisfaction  of  a  legacy  by  a  portion — Ademption,)  303 

Robinson  v.  Pett,  (No  allowance  to  an  executor  or  trustee  for  his 

care  or  trouble,)           ......  200 

Scott  v.  Tyler,  (Conditions  in  restraint  of  marriage — Public  policy,)  105 

Silk  v.  Prime,  (Equitable  assets,)  .  .  .  .  .82 

Talbott,  (Sir  John,)  v.  Shrewsbury,  (Duke  of,)  (Debt  satisfied 

by  a  legacy,)  .......  317 

"Wake  v.  Conyers,  (Confusion  of  boundaries,)         .             .             .  362 

TViLCOCKS  V.  WiLCOCKS,  (Performance  of  covenant  to  purchase  and 

settle  an  estate,)          ......  345 

WooLAM  V.  Hearn,  (Distinction  between  seeking  and  resisting  spe- 
cific performance  as  to  the  admission  of  evidence,)       .              .  404 


INDEX 


THE    NAMES    OF    CASES    CITED. 


The  pages  referred  to  are  those  between  brackets  [ 


Abbott  V.  Geraghty 

V.  Sworder 

Abdy  V.  Lovedaj- 
Abnej  v.  Miller 
Acherley  v.  \Mieeler 
Ackworth  v.  Ackworth 
Acton  V.  Acton 
Adair  v.  Shaw 
Adams  v.  Lavender 
Adnam  v.  Cole 
Aislabie  v.  Rice 
Alcock  V.  Sloper 

V.  Sparhawk 

Aldrich  v.  Cooper 
Alexander  v.  Alexander 

V.  Graham  (Lady 

Allen  V.  Anthony 

V.  Callow 

V.  Knight 

Alleyn  v.  Alleyn 
Alton  V.  Medlicot 
Amand  v.  Bradbourne 
Ambrose  v.  Ashby 
Amos  v.  Horner       117.140. 

Amphlett  v.  Parke 
Amy's  case 
Ancaster  v.  Mayer 
Andrew  v.  Andrew 
Angerstein  v.  Martin 
Anonymous       18,  39.  84,  85 


--  V.  Jolland 


Apreece  v.  Apreece 
Armstrong  v.  Burnet 
Arnold  v.  Arnold 

V.  Chapman 

V.  Ennis 

Arundel  v.  Trevillian 
Ashburner  y.  Macguire 
Ashley  v.  Baillie 
Ashton  V.  Ajliton     IT.'!,  180, 


40 

424 

19 

251 

259 

326 

256 

?5 

338 

298 

193 

280,  281 

97 

C9,  80,  81 

301 

I  100 

41 

291,  294 

7,  39,  48 

339 

238 

225 

138 

IGl,  162,  164, 

175,  186 

259 

21 

102,  243,  272 

259 

258 

,  98,  147,  219, 

225,  415,  423 

219 

238 

,    252 

261 

76 

284 

201 

236,  243,  246 

49 

234,  240,  24S 


Aston  V. 


Aston 
Curzon 


T.  Exeter  (Lord) 

Atkins  V.  Delmege 

V.  Farr 

V.  Hatton 

Atkinson  v.  Webb 
Att.-Gen.  v.  Alford 

V.  Backhouse 

V.  Fullerton 

V.  George 

V.  Gower 

V.  Graves 

T.  Grote 

V.  Hamilton 

V.  Harley 

V.  Marrett 

V.  Norwich  (Mayor  of) 

V.  Pargetcr 

v.  Parkin 


115,  150 

17 

370 

48 

198 

368,  370 

338 

219 

43,  48 

370 


V.  Robins 

V.  Sands 

V.  Stephens 

V.  Tomkins 

V.  Tyndall 

V.  Weymouth 

V.  Wilkins 

V.  Winclielsea 

Attwater  v.  Attwater 
Aveling  v.  Ward 
Avelyn  v.  Ward 
Averall  t.  Wade 
Awbrey  v.  Middletou 
Ayliflfe  v.  Murr.ay 
Aynsworth  v.  Pratchett 

Backwell  v.  Child 
Badrick  v.  Stevens 
Bailey  v.  Ekins 

V.  Richardson 

Baillie  v.  Butterficld 
Bailv  V.  Ploughman 


290 

17 

7S 

241 

400 

295 

53 

225 

48 

231,  232,  235 

256 

226    227 

39,370,'  371 


(Lord) 
(Earl  of) 


64,  78,  79 
78 
13,  18 
78 
240 
249 
235 
64,  80,  81 
97 
213 
260 

251 

246 

85,  93 

41 

290,  298 

104 


XVI 


TABLE     OF     CASES. 


Bainbrigge  v.  Blair 
Bainton  v.  Ward 
Baker  v.  Martin 
V.  Morgans 


200,  210,  213 

103 

212 

15 

198 

80 

400,  401 

95.  96 

22G 

44 


V.  White 

Baldwin  v.  Belcher 

Balfe  V.  Redington 

Ball  V.  Harris 

Balsh  V.  Hyhara 

Barber  v.  Brown 

Barclay  y.  Russell  227 

V.  Wainwrigbt  2S9,  291,  295 

Barham  v.  Clarendon  (Earl  of)  351 

Baring  v.  Kash  395,  400 

Barker  v.  Damer  92 

-  V.  Devonshire  (Duke  of)  97 

Y.  May  ]  00 

—  V.  Rayner  24t3 

Barnes  v.  Racster  64,  80 

Barnewell  v.  Cawdor  (Lord)  102 

Barnhart  v.  Grecnshields  38,  41,  43 

Barret  v.  Beckford  339,  358 

Barrington  v.  Tristram  257 

Barrow  v.  Wadkin  227 

Barry  v.  Harding  253 

Barthelomon  v.  Scholev  266 

Bartlett  v.  Gillard         '  290,  338 
Barton  v.  Barton               17:5,  180,  186,  187 

V.Cooke  239 

Basan  v.  Brandon  238,  250 

Basingstoke  (Mayor   of)   v.  Bolton 

(Lord)  373 

Basset  v.  Nosworthy  5 

Bate  V.  Hooper  282 

Bateman  v.  Hotchkin  103 

Batson  v.  Lindegreen  93 

Baylee  v.  Quin  298 

Bayley  v  Edwards  373 

Beaumont  v.  Squire  197 

Beavan  v.  O.xford  (Earl  of)  54 

.  Beckford  v.  Tobin  258 

Beeston  v.  Booth  256 

Bell  V.  Coleman  331 

V.  Cundall  16 

Bellamy  v.Habine  54 

Bellasis  v.  Ermine  111,  ll.'J,  114.  125,  139, 

162,  171,  174 

V.  Uthwatt  327,  328 

15ellringer  v.  Blagravc  427 

Bengougb  v.  Walker  326,  327,  328 

Benn  v.  Dixon  279 

Bcnsusan  v.  Nehemias  337 

Benyon  v.  Benyon  292,  293 

Bernard  v.  Drought  13 

Berrisford  v.  Milward  '           20 

Bertie  v.  Falkland  (Lord)  125,  127,  135, 

171,  182 

Besant  v.  Richards  415 

Bessonet  v.  Robins  45 

Bethune  v.  Kennedy  241,  280,  283 

Bickham  v..  Freeman  85 

Biggleston  v.  Grubb  331 

Binsted  v.  Coleman  414 

Birch's  case  194 


Birch  V.  Baker  246 

V.  Ellames  35,  39 

Bird  V.  Fox  48 

V.  Hunsdon  187 

Bisco  V.  Banbury  (Earl  of)  43 

Blades  v.  Blades  30,  32 

Blake  v.  Hungerford  (Sir  Edward)  7 

Blakeney  v.  Baggot  427 


Blandy  v.  Widmore  355,  357,  359,  360,  361 

Blann  v.  Bell  280,  282 

Blenkarne  v.  Jennens  26 

Blewett  V.  Jessop  91 

Bligh  V.  Darnley  (Earl  of)  72 

Blount  V.  Hipkins  253 

Blower  v.  Morret  255,  256 

Boddy  V.  Dawes  260 

Bodicoate  v.  Steers  399 

Bodmin  (Lady)  v.  Vandebendv  17 

Bolton  V.  Ward  '                395 

Bonithon  v.  Hickmore  217 

Bonner  v.  Bonner  72 

Bonnett  v.  Sadler  425 
Bonney  v.  Ridgard           112,  113,  155,  156 

Booker  v.  Allen  321,  324,  333 

Booth  V.  Alington  255 

Bootle  V.  Blundell  98 

Borell  V.  Dann  48 

Boteler  v.  Spelman  367 

Boulcott  V.  Boulcott  299 

Bourke  r.  Ricketts  261 

Bouverie  v.  Prentice  372,  373 

Bovey  v.  Smith  35 

Bowaman  v.  Reeve  73 

Bowden  v.  Bowden  282 

Bowen  v.  Evans  7,  13 

Bowles'  (Sir  John)  case  101 

Bowman  v.  Yeat  363 

Bowra  v.  Wright  400 

Boxcndale  v.  Seale  418 

Boyd  V.  Belton  '21 

Boynton  v.  Parkhurst  78 

Boys  V.  Williams  241 
Brace  v.  Marlborough  (Duchess  of)         17 

Bradford  v.  Foley  76 

Braithwaite  v.  Britain  97 

Brampton  v.  Barker  17 

Brandlyn  v.  Ord  37 

Brassey  v.  Chambers  402 

Brealey  v.  Collins  423 

Brennan  v.  Moran  290,  298 

Brereton  v.  Gamul  18 

Briant  v.  Mann  399 

Bridgeman  v.  Dove  98 

Bridger  v.  Rice  427 

Bright's  Trusts,  In  re  48 

Brine  v.  Ferrier  297,  298 
Bristow  V.  Bristow           253,  257,  294,  301 

Brocksopp  V.  Barnes  209,  217 

Bronsdun  v.  W'inter  240,  249 

Brook  V.  Hertford  400 

Brooke  (Earl)  v.  Bnlkelcy  35 

(Lord)  V.  Kouthwaite  423 

V.  Warwick  (Enrl  of)     245 

Brotherton  v.  Hatt  26,  50,  52 


TABLE     OF     CASES. 


XVU 


Broughton  v.  Brougbton 
Brown  v.  Brown 

V.  Dawson 

V.  De  Tastet 

V.  Litton 

V.  Peck 

V.  Temperley 

Browne  v.  Coppinger 

V.  Groombridge 

Brudenell  v.  Boughton 
Bruen  v.  Bruen 
Brydges  v.  Landen 
Buckle  V.  Mitchell 
Bugden  v.  Bignold 
Bullock  V.  Bennett 

V.  Sadlier 

Burden  v.  Burden 
Burge  V.  Brutton 
Burgess  v.  Wheate 
Burgh  V.  Wolfe 
Burke  v.  Killikelly 
Burlace  v.  Cooke 
Burleton  v.  Humphrey 
Burridge  v.  Bradyl 
Burrows  v.  Lock 
Burton  v.  Mount 

V.  Pierpont 

Busby  V.  Seymour 
Bushell  V.  Bushell 
Butcher  v.  Stapely 
Bute   (Marquis  of) 

shire  Canal  Company 
Butler  V.  Bray  (Lady) 

V.  Freeman 

Buxton  V.  Lister 
Byde  v.  Byde 

Cadman  v.  Horner 
Cafe  V.  Bent 
CafFrey  v.  Darby 
Caldecott  v.  Caldecott 
Callaghan  v.  Callaghan 
Calmady  v.  Calmady 

Calverly  v.  Williams 
Campbell  v.  Graham 

V.  Radnor  (Lord) 


211 
256 
337 

224 

223 

205 

259 

426 

250 

98 

326 

91 

37 

54,  81 

195 

17 

209 

209 

35,  226,  227 

19 

92 

7,  8,  11,  14 

194 

255 

21 

282 

78 

73 

36,  54 

38 

Glamorgan- 

370,  372 

142 

260 

406,  410,  423 

326,  338 

423,  424 
281 
225 
258,  279,  284 
418 
380,  382,  390,  391, 
392,  393,  394,  396 
418 
239,  253,  261 
295,  298 
Canning  v.  Canning  398 

Cardigan  (Lord)  v.  Montagu  401 

Carr  v.  Eastabrooke  339 

Carte  v.  Carte  251 

Carter  v.  Saunders  98 

V.  Taggart  255 

Cartwright  v.  Cartwright  235 

V.  Pulteney  379 

Carver  v.  Bowles  323 

Castleton  (Lord)  v.  Fanshaw  (Lord)      233 
Cave  V.  Roberts  227 

Chadwin,  Ex  parte  255 

Chambers  v.  Chambers  279 

V.  Godwin  259 

V.  Goldwin  211 

Chancey  v.  Rees  206 

v.  Wootten  318 

VOL.  II. — 2 


Chancey's  Case 
Chapman  v.  Esgar 

V.  Hart 

V.  Salt 

Charlton  v.  Low 

v.  Wright 

Chatteris  v.  Young 
Chauncey  v.  Graydon 
Chave  v.  Farrant 
Chaworth  v.  Beech 
Chedworth  v.  Edwards 
Chesterfield  v.  Janssen 
Chetham  v.  Audley  (Lord) 
Cheval  v.  Nichols 
Chidley  v.  Lee 
Child  v.  Elsworth 

V.  Stephens 

Choat  V.  Yeats 
Christophers  v.  White 
Churchil  v.  Grove 
Clare  v.  Bedford  (Earl  of) 


337,  340 

104 

245 

331 

7 

95 

301 

115,  173,  180 

341,  342 

236,  238,  253 

371 

200 

212 

30,  32 

342 

257 

98 

239 

209 

53 

20 


Clarendon  (Earl  of)  v.  Hornby  397, 398, 399 


Clark  V.  Browne 

V.  Lucy 

v.  Sewell 

Clarke  v.  Berkeley 

V.  Grant 

V.  Parker 

Clay  V.  Willis 
Clermont  v.  Tasbury 
Clifford  V.  Beaumont 

V.  Lewis 

Clifton  V.  Burt 
Clinan  v.  Cooke 
Clive  v.  Clive 
Clowes  v.  Higginson 
Coard  v.  Holderness 
Cock  V.  Richards 
Cockerell  v.  Barber 
Cockran  v.  Cockran 
Cocks  v.  Foley 
Coffin  V.  Cooper 
Cogswell  V.  Armstrong 
Cole  V.  Gibson 

V.  Scott 

V.  Sewell 

V.  Turner 

Colegrave  v.  Manby 
Coleman  v.  Coleman 
Coles  V.  Trecothick 
Collet  V.  De  Gols 
Colleton  V.  Garth 
Collins  V.  Archer 

V.  Blantern 

V.  Carey 

V.  Collins 

CoUison  V.  Curling 
Collyer  v.  Ashburner 
Colyer  v.  Clay 

V.  Finch 

Connelly  v.  Connelly 
Constancia,  La 
Cook  V.  Gregson 
Cooke  V.  Clayworth 


249 

137 

257,  338 

189,  195 

416,  421,  423 

191,  192,  193,  194 

100 

424 

174,  183,  197 

96 

73 

413,  415,  416 

253,  257 

418 

253 

198 

261 

239 

363 

190 

74 

202 

240 

396,  400 

98 

252 

234,  238,  247 

421 

53 

244 

11,  14 

201 

209 

283 

242 

257 

427 

13,  14,  39 

179 

81 

89,  100 

425 


XVIU 


TABLE     OF     CASES. 


Cooke  V.  Collingridge  224 

Cooper  V.  Cooper  189 

V.  Day  301 

Coore  V.  Todd  256 
Coote  V.  Boyd                           289,  295,  300 

V.  Coote  426 

V.  Mammon  49 

Copis  V.  Middleton  4 
Copley  V.  Copley                               326,  328 

Coppin  V.  Fernyhough  43 

Corbett  v.  De  Cantillon  36 

Corbett's  Case                       ,  389 

Cork  V.  Wilcock  17 

Corkers  v.  Minors  189 

Cornewell  v.  Cornewell  103 

Cornwall,  In  re  80 

Cory  V.  Gertcken  20 

Costigan  v.  Hastier  427 

Cothay  v.  Sydenham  46 
Couch  T.  Stratton                    358,  359,  361 

Court  v.  Robarts  219 

Coventry  v.  Higgins  190 
Cowper  V.  Mantell                              251,  253 
Cox  (Sir  Charles),  In  re  the  Credit 
ors  of 

V.  Cox 

V.  Middleton 

V.  Parker 

Cox's  Case 
Coxe  V.  Basset 
Crackett  v.  Bethune 
Cradock  v.  Owen 

—  V.  Piper 


99 
401 
424 
226 

85 

97 

261 

227 

70,  210 

425 

97 

266 

155,  156,  165 

338,  339 

224 


Cragg  V.  Holme 
Crallan  v.  Oulton 
Cranch  v.  Cranch 
Crane  v.  Drake 
Cranmer's  Case 
Crawshay  v.  Collins 

Creagh  v.  Wilson    115,  123,  136,  138,  151, 
161,  164,  173,  174,  180,  184 

Creed  v.  Creed  238,  242,  253 

Crickett  v.  Dolby  259,  260 

Crockat  v.  Crockat  234,  237,  247,  248 

Crofton  V.  Ormsbj'  35,  41 

Crommelin  v.  Crommeliu  190,  195 

Crompton  v.  Sale  324,  339 

Croome  v.  Lediard  420,  421 

Crosbie  v.  Mayor  of  Liverpool  78 

Cross  V.  Konnington  97 

Crouch  V.  Stratton  350 

Crowper  v.  Clowes  301 

Crowe  v.  Crisford  282 

Culpepper  v.  Aston  ^               73 

Culpepper's  Case  5 

Cummins  v.  Cummins  223 

Currie  v.  Pye  294 

Curry  v.  Pile  287,  297 

Curtis  V.  Curtis  402,  403 

Curzon  v.  Oyster  370,  380,  382 

Cutterback  v.  Smitli  85 

Dagley  v.  Leake  206 

D'Aguilar  v.  Drinkwater  192 


Daley  v.  Desbouverie  134,  191,  192 

Daniel  v.  Adams  427 

y.  Warren  280,  283 

Daniels  v.  Davison  35,  41,  42 

D'Arcy  V,  Blake  15 
Darlington  (The  Earl  of)  v.  Bowes        365 

v.  Hamilton  45 

Dashwood  v.  Bulkeley  173,  180,  192,  193 

Daubeny  v.  Cockburn  103,  104 


Davall  V.  New  River  Company 
Davenhill  v.  Fletcher 
Davies  v.  Bush 

V.  Gardiner 

V.  Morgan 

V.  Thomas 

V.  Topp 

Davis  V.  Chambers 

V.  Gardiner 

V.  Strathmore 

V.  Symonds 

Davys  v.  Boucher 

V.  Howard 

Dawson  v.  Clarke 
v.  Killett 


348, 


Day  V.  Arundel 

V.  Croft 

Deacon  v.  Smith 

Deane-v.  Teste 

Debeze  v.  Mann 

Deering  v.  Winchelsea  (Lord) 

Deg  V.  Deg 

Delacour  v.  Freeman 

Denton  v.  Davy 

Desbody  v.  Boyville 

Descrambes  v.  Tomkins 


226 

255 

255 

74 

238 

44 

102 

328 

98 

53 

414,415,423 

322,  324,  325 

353 

225 

150 

17 

218, 301 

349,  353,  354 

240 

332, 337 

60,  62 

104 

323 

211 

195 

260 


Devese  v.  Pontet  339,  357,  358,  361 

Dickin  v.  Edwards  243 

Dickson's  Trusts  180 

Dillon  v.  Coppin  395 

V.  Harris  193 

(Lord)  V.  Costelloe  19 

Dimes  v.  Scott  258 

Dingwell  v.  Askew  249 

Dobson  V.  Leadbcater  17 

Docker  v.  Somes  219 

Doe  v.  Allen  408 

Dollond  V.  Johnson  92 

Donne  v.  Lewis  93 

Donovan  v.  Needhnm  258,  260 

Dormay  v.  Borradaile  97 

Dornford  v.  Dornford  261 
Dorset  (Duke  of)  v.  Girdlcr  (Serjeant)  363 

Douce  V.  Torrington  (Lady)  96 

Douglas  V.  Congreve  258 

V.  Douglas  240 

V.  Willis  328,  343 

Dover  v.  Gregory  97 

Dowling  V.  Hudson  97 

V.  Tyrrell  258 

Drew  V.  Norbury  (Lord)  36 

Drinkwater  v.  Falconer  238,  248,  240,  324 

Dryden  v.  Frost  39,  48 

Drysdale  v.  Mace  45,  425 

Dubost,  Ex  parte  322,  331 


TABLE     OF     CASES. 


XIX 


Duggan  V.  Kelly  1T9 

Dii  liourmelin  v.  Sheldon  228 

Dunbar  v.  Tredennick  35 
Duncan  v.  Howell                     382,  386,  389 

V.  White  2b6 

Durham  (Lord)  v.  Wharton  322 

Durour  v.  Motteux  141 

Durrant  v.  Friend  244 

Dyer  v.  Bessonnett  15,  256 

Dyke  v.  Walford  227 

Dyose  r.  Dyose  255 

Eardlej^  v.  Owen  94 

Early  v.  Benbow  297 

"-  V.  Middleton  297 

East  India  Company  V.  Donald  27 

Eastwood  V.  Vinke  338,  361 

Eavestaff  v.  Austin  256 

Edmunds  v.  Low  339,  340 

Edwards,  Ex  parte  16 

V.  Hall  238 

EUard  v.  Cooper  71 

V.  Llandaff  (Lord)  423,  428 

Ellcock  V.  Mapp  227 

Elliot  V.  Merryman  176 

Ellis  V.  Ellis  175,  336 

y.  Walker         232,  237,  238,  251,  253 

Ellison  V.  Airey  97,  207,  212 

V.  Cookson  332 

V.Ellison  311 

Elsey  V.  Lutyens  36 
Eiton  V.  Elton                    110,  111,  139,  162 

Ely  (The  Bishop  of)  v.  Kenrick  371 

Evans  v.  Bicknell  39 

V.  Brown  91 

V.  Jones  280 

Ewer  V.  Corbet  156 

Eyre  v.  Dolphin  44 

Fagg's  (Sir  John)  case  6,  8 

Faine  v.  Brown  426 

Farley  v.  Briant  94 

Farmer  v.  Compton  134 

Farnham  v.  Phillips  325 

Farrow  v.  Rees  39,  40 

Fazakerley  v.  Gillibrand  328 

Fearns  v.  Young  225,  277 

Featherstonhaugh  v.  Fenwick  224 

Fell  V.  Chamberlain  414 

Fenton  v.  Browne  424 

Ferrars  v.  Cherry  35,  37,  44 

Festing  v.  Allen  260 

Field  V.  Boland  35 

V.  Mostin  340 

Fielding  v.  Preston  280 

Filmer  v.  Gott  408,  421 

Finch  V.  Finch  326,  328 

V.  Hattersley  96,  97 

V.  Shaw  13,  39,  49 

Fitzgerald  v.  Falconberge  49 

Fitzwilliam  v.  Kelly  253 

Fleming  v.  Buchanan  103 

V.  Walgrave  139 

Flight  V.  Barton  45 


Flood  V.  Finlay 
Foden  v.  Howlett 
Fonnerau  v.  Poyntz 
Fontaine  v.  Tylor 
Forbes  v.  Lawrence 

(Lord)  V.  Nelson 

Ford  V.  Fleming 

V.  White 

Fordham  v.  Wallis 
Forrest  v.  Elwes 
Forrester  v.  Leigh  (Lord) 
Forsight  v.  Grant 
Forstcr  v.  Thompson 
Fosbrooke  v.  Balguy 
Foster  v.  Blagden 

V.  Cook 

V.  Handley 

Fourdrin  v.  Gowdey 
Fowdin  v.  Gowdey 
Fowler  v.  Fowler 

v.  Willoughby 

Fox, In  re 

V.  Mackreth 

Foy  V.  Foy 
Frail  v.  Ellis 
Francis  v.  Clemow 
Fraser  v.  Byng 

V.  Palmer 

Fraunces's  case 
Freeman  v.  Fairlie 

V.  Simpson 

Freemantle  v.  Bankes 
Freemoult  v.  Dedire 
Freer  v.  Hesse 
French  v.  French 
V.  Harrison 


Fry  V.  Noble 
V.  Porter 

Fryer  v.  Buttar 

V.  Morris 

Fuller  V.  Bennett 


38,  1 


423 

171 

255 

241 

290 

30 

234,  238,  248 

36.  37,  54 

73 

211 

59,74,76,  77,78 

338 

97 

223 

78,  79 

76 

91,  99 

338 

78 

337,  341,  343 

242,  253 

80 

225 

289 

53 

98 

2  94 

210 

132 

212 

258 

325 

92 

53 

90 

355 

402 

13,  121,  125,  127, 

137,  182,  194 

279 

238,  246,  247 

48,  49,  50 


Gale  V.  Gale 

V.  Lindo 

Gallimore  v.  Gill      ' 
Galton  V.  Hancock 
Garbut  v.  Hilton 
Gardener  v.  Hatton 

v.  Townshend  (Marquis 

Garrard  v.  Dinorben  (Lord) 

v.  Grindling 

Garrett  v.  Pritty  116,  139, 

Garth  v.  Meyrick 

V.  Ward 

Garthshore  v.  Chalie 


Gaskell  v.  Gaskell 
Gaynon  v.  Wood 
George  v.  Milbanke 
Gerrard  v.  O'Reilly 
Gervis  v.  Gervis 
Gibbons  v.  Hills 
Gibbs  v.  Ougier 


247 
202 
97,  98 
70.  77 
112 
238,  247 
of)  349 
92 
423 
140,  185 
296 
54- 
349,  356,  357,  359, 
360 
395 
337 
104 
52 
103 
'  238 
73,  77 


74 


XX 


TABLE     OF     CASES. 


Gibson  v.  Bott 

V.  Dickie 

. V.  Ingo 

V.  Seagrim 


257,  258,  266,  284 

198 

40 

80,  81 

Gillaurae  v.  Adderley  241,  253 

Gillespie  v.  Alexander  295 

Gillett  V.  Wray         111,  115,  137,  153,  162, 
163,  174,  184 
Girling  v.  Lee  85 

Gleugall  (Earl  of)  V.  Barnard        327,  333 
Glynn  v.  Scawen  367,  370 

Godfrey  V.  Littel  370,371,372 

Godolpbin  (Earl  of)  v.  Penneck  96 


Goldiug  V.  Haverfield 
Goldsmid  v.  Goldsmid 
Goldsmith  v.  Bruning 
Goleborn  v.  Alcock 
Gomley  v.  Wood 
Gomm  V.  Parrott 
Goodenough  v.  Goodenough 

■ —  V.  Tremamondo 

Goodfellow  V.  Burchett 
Goodlad  v.  Burnett 
Gordon  v.  Adolphus 

(Lord  William) 

(Marquis  of) 

V.  Shaw 

V.  Trail 


328 

193,  357,  359,  361 

202 

5 

209 

13 

403 

280,  281 

328 

239 

188 


Gosling  V.  Carter 
Gott  V.  Atkinson 
Gould  V.  Fleetwood 
Govett  V.  Richmond 
Graham  v.  Graham 

V.  Londonderry 

Grant  v.  Campbell 

V.  Dyer 

V.  Mills 

Grave  v.  Salisbury  (Lord) 

Graves  v.  Graves 

V.  Hughes 

Graydon  v.  Hicks 
Greaves  v.  Powell 
Green  v.  Smith 

V.  Symonds 

Greenslade  v.  Dare 


Greenwood  v.  Greenwood 

V.  Taylor 

Grierson  v.  Eyre 
Griffith  V.  Morrison 
Griffiths  V.  Grieve 
Grinstead  (East)  Case 
Groves  v.  Wright 
Guerncy  v.  Oranmore  (Lord) 
Guy  V.  Sharp 
Gwynne  v.  Edwards 


Hertford 

422 

18 

225 

96 

93 

215 

20 

338 

78 

211 

193 

35 

309,  312,  313, 

328,  331,  336 

96,  97 

248 

193 

85,  101 

428 

244 

15,  53 

296 

71,  72 

370 

259 

266 

37 

259 

40 

300,  301 

68,  70 


290, 


Hales  V.  Darell  338,  340 
Hall  V.  Hill       300,  301,  331,  333,  343,  344 

V.  Potter  202 

V.  Smith  44 

V.  Thynne  200 

Hambling  v.  Lister  248 

Hamilton  v.  Royse  49 


Hamilton  v.  Wright 

(Duke  of)  V.  Mohun  (Ld) 

Hamly  v.  Fisher 
Hanbury  v.  Hanbury 

■  V.  Hussey 

V.  Litchfield 


Hanby  v.  Roberts 
Hanuing  v.  Ferrers 
Harourt  v.  Knowel 

V.  Wrenham 

Harding  v.  Grady 

. V.  Hardrett 

V.  Suffolk  (Countess  of) 

Hardingham  v.  Nicholls 

■-  V.  Thomas 

Hardman  v.  Ellames 
Hargrave  v.  Tindal 


209 
202 

74 
327 
399 

42 
69,  72,  73,  74 

20 


Hargreaves  v.  Rothwell 
Harmood  v.  Oglander 
Harnett  v.  Yielding 
Harris  v.  Ingledew 

V.  Kemble 

V.  Poyner 

V.  Watkins 

Harrison  v.  Asher 

V.  Forth 

Harryman  v.  Collins 
Hart  V.  Middlehurst 
Hartley  v.  Ostler 

V.  Rice 

Hartopp  V.  Hartopp 
Hartwell  v.  Chitters 
Harvey  v.  Harvey 
Harvy  V.  Woodhouse 
Harwood  v.  Wrayman 
Haslewood  v.  Pope 
Hatton  V.  Hooley 
Haughton  v.  Haughton 
Hawkins  v.  Lawes 
Hawthorne  v.  Shedden 
Hayes  v.  Hayes 
Haynes  v.  Mico 
Head  v.  Egerton 
Hearle  v.  Greenbank 
Heath  v.  Dendy 

V.  Lewis 

V.  Perry 

Heaton  v.  Dearden 


6 

100 

96 

18 

363 

17 

321,  343 

18 

93 

49,50,  52 

93,  102 

423,  426,  428 

18 

424 

282 

97,  98 

250 

37 

48 

104 

298 

198 

322 

99, 100 

259 

16 

100 

73, 104 

285 

179 

100 

236 

239,  240 

338,  357,  358 

157 

259 

255 

181 

234,  259 

395 


Helsham  v.  Langley  427 

Heraing  v.  Clutterbuck  289,  298 

Hemming  v.  Gurrey  295 

Hemmings  v.  Munklcy    112,  115.  125,  138, 

148,  1G2,  173,  174,  180,  183 

Henchman  v.  Attorney-General  227 

Henckell  V.  Daly  211 

Henderson  v.  M'lver  218 

Henvell  v.  Whitaker  97 

Herbert,  Ex  parte  53 

Heme  v.  Heme  345 

Hertford  v.  Lowther  252,  290 

Hervey  v.  Aston      110,  111,  113,  114,  115, 

117,   120,    121,   122,   123,  124,   125,   127, 

135,   137,    138,    140,   141,   14G,  153,  161, 

164,   174,   179,  182,  192 


TABLE     OF     CASES. 


XXI 


42 

244 

225 

256 

254 

39,  53 

258 

219 

139,  1T4,  184 

21 

54 

225 

39,  50 

54 

415 

427 

399 

259 

326,  329 

282 

49 

234,  237,  238 

103 

280 

53 

53 

4 

90 

101 

18 

20 

79 

395,  400 

290 

54 

414 

270 

296 

103 

324 

137,  162 

54 

242,  251 

280,  284 

285,  289,  291,  292,  295, 

297 

Hope  V.  Liddel  13,  44 

Hopkinson  v.  Roe  218 

Hopwood  V.  Hopwood  324 

Horlock  y.  Smith  352,  355 

Horncastle  v.  Charlesworth  395 

Horwood  V.  Griffith  242,  253 

Hosier  v.  Read  417 

Hosking  v.  Nicholls  241 

Hoskins  v.  Hoskins  329,  331 

Houghton  V.  Harrison  260 

House  V.  Wray  283 

Howe  V.  Aylesbury  (Countess  of )  225 

V.  Dartmouth  (Earl  of)         243,  259, 

275,  276,  282 

V.  Howe  282 

Howell  V.  George  426 

V.  Price  74 

Howes  &  Downes  v.  Petrie  (Lord)  208 


Hervey  v.  Smith 
Heseltine  v.  Heseltine 
Hethersell  v.  Hales 
Hewett  V.  Snare 
Hewitt  V.  George 

V.  Loosemore 

V.  Morris 

Hibbert  v.  Jenkins 
Hicks  V.  Pendarvis 
Hickson  v.  Aylward 

V.  Collis 

Hide  V.  Haywood 
Hiern  v.  Mill 
Higgins  V.  Shaw 
Higginson  v.  Clowes 
Hill  V.  Buckley 

V.  Fulbrook 

V.  Hill 

Hinchcliffe  v.  Hinchcliffe 
Hind  V.  Selby 

Hine  v.  Dodd 
Hintou  V.  Pinke 

V.  Toye 

Hinves  v.  Hinves 
Hiorns  v.  Holton 
Hitchcock  V.  Sedgwick 
Hitchins  v.  Basset 
Hitchon  v.  Bennett 
Hixon  V.  Wytham 
Hoare  v.  Parker 
Hobbs  V.  Norton 
Hobson  V.  Blackburn 

V.  Sherwood 

Hodges  V.  Peacock 
Hodgson  V.  Dean 
Hogg  V.  Snaith 
Holder  v.  Holder 
Holford  V.  Wood 
Holmes  v.  Coghill 

V.  Holmes 

—  V.  Lysaght 

Holt  V.  Dewell 
Hone  V.  Medcraft 
Hood  V.  Clapham 
Hooley  v.  Hatton 


Hubbard  v.  Young 
Huddlestone  v.  Huddlestone 
Hudson  V.  Bartram 
Hughes  V.  Doulbin 

V.  Garner 

V.  Garth 

V.  Morris 

V.  Wells 

V.  Williams 

Humble  v.  Bill 
Hume  V.  Edwards 
Humphreys  v.  Humphreys 
Humphries  v.  Home 
Hungerford  (Sir  Edward)  v. 
Hunt  V.  Berkeley 

V.  Scott 

Hunter  v.  Kennedy 

Hurst  V.  Beach         290,  292, 

Hutchinson  v.  Morritt 

Ibbottson  V.  Rhodes 
Incledon  v.  Northcote 
Inge  V.  Lippingwell 
Innes  v.  Johnson 

V.  Sayer 

Ireland  v.  Wilson 
Irnham  (Lord)  v.  Child 
Irvin  V.  Ironmonger 

Jackson  v.  Hamilton 

V.  Jackson 

V.  Rowe 

Jackson's  Case 
Jacques  v.  Chambers 
James,  Ex  parte 
Jeacock  v.  Falkner 
Jebb  V.  Tugwell 
Jefifereys  v.  Michel! 
Jenkins  v.  Briant 
Jenkinson  v.  Pepys 
Jenney  v.  Andrews 
Jennings  v.  Bond 

V.  Moore 

Jerrard  v.  Saunders 
Jervois  v.  Duke 
Johnson  v.  Child 

V. Johnson 

V.  Woods 

Johnstone  v.  Barber 
Jolland  V.  Stainbridge 
Jones  V.  Foxall 
Jones  V.  Goodchild 

,  In  re 

V.  Powles 

V.  Robinson 

V.  Smith       39,  41,  42, 

V.  Stanley 

V.  Suffolk  (Earl  of) 

V.  Thomas 

V.  Williams 

Jope  V.  Morshead 
Jordan  v.  Holkara 

V.  Sawkins 

Joyce  V.  De  Moleyns 


283 

403 

438 

93 

17,  27 

17 

36 

91 

80 

156 

238 

239,  255 

415 

Nosworthy  4 

254 

282 

36 

293,  299,  300 

224 

21 

78,  259 

421 

236,  237,  238 

242 

368 

406,  408,  421 

96 

103,  212 

298 

16,  18 

35 

241,  243,  253 

225 

338 

280 

340 

94 

414,  418 

'  103 

54 

26,  34,  35 

8,  11,  18 

139,  173,  179 

75 

240,279 

78 

399 

38 

223 

227 

80 

6 

401 

43,  46,  48,  53 

55 

194 

17 

97 

395,  396 

173,  180,  186 

421 

11 


XXll 


TABLE     OF     CASES. 


118 


Jovnes  V.  Statham 

Kampf  V.  Jones 
Kearman  v.  Fitzsimon 
Keat  V.  Allen 
Keech  v.  Sandford 
Keeling  v.  Brown 
Keeper  (Lord)  v.  Wyld 
Kelly  V.  Monck 
Kelsal  V.  Bennet 
Kemp  V.  Coleman 
Kendall,  Ex  parte 
Kennedy  v.  Daly 

V.  Green 

T.  Kennedy 

V.  Trott 

Kenney  v.  Brown 
Kentish  v.  Kentish 
Kerakoose  v.  Searle 
Key  V.  Bradshaw 
Kidd  V.  Xorth 
Kidney  v.  Coussmaker 
Kightley  v.  Kightley 
Kilmorey's  (Lady)  Case 
Kimberley  v.  Jennings 
Kinderley  v.  Jervis 
King  V.  Smith 

V.  Wilson 

V.  Withers 

(The)  V.  Coggan 

(The)   V.  The   Inhabitants 

Scammonden 

(The)  V.  Simpson 

Kirby  v.  Potter  237 

Kirk  V.  Eddowes  314,321 

Kirkman  v.  Booth 
Kirkpatrick  v.  Kirkpatrick 
Knight  V.  Cameron 

T.  Davis 

V.  Knight 

Knott,  Ex  parte 

Lambert  v.  Lambert 
Lamlee  v.  Hanman 
Lancaster  v.  Evorg 
Land  v.  Devaynes 
Lane  v.  Cox 

Jackson 


406,  411,  413, 416 


239 

71 

202 

224 

73,  97,  98 

18 

,  179,  186 

17 

202 

71 

35,  37 

38,  51,  53 

243 

371 

378 

96 

225 

198,  200 

298 

102 

96,  98 

140 

426 

99 

72 

227 

137,  153 

227 

of 

408 

208 

239,  240 

,  323,  329 

209 

238 

174,  183 

252 

260 

7,  53 


241,  256 

203 

19 

244 

386 

13,  53 


Lanesborough   (Lady)  v.  Kilmaine 

(Lord)  16 

Lang  V.  Lang  356,  360 
Lanoy  v.  Athol  (Duke  of)       58,  60,  79,  81 

Lansdowne  v.  Lansdowne  261 

Larncr  v.  Lamer  237 

Lassells  v.  Cornwallis  (Lord)   '  103 

La  Terriere  v.  Bulmer  258 

Latouche  v.  Dunsany  (Lord)  36 

Latour,  Ex  parte  16 

Laurie  v.  Clutton  254 

Law  V.  Law  200 

V.  Urlwin  427 

Lawless  v.  Shaw  225 

Lawrenson  v.  Butler  428 

Lawson  v.  Laude  414 


Lawson  v.  Stitch  234,  237,  238 

Leacroft  v.  Maynard  301 

Leake  v.  Leake  328 

Lechmere  v.  Carlisle  (Earl  of)       348,  349, 

V.  Lechmere  349,  352,  353 

Lee  V.  D'Aranda  356,  358,  359,  360 

V.  Green  53 

V.  Pain        290,  291,  294,  296,  299,  300 

Leeds  (Duke  of)  v.  New  Radnor  (Cor- 
poration of)  373 

T.  Powell  373 

V.  Strafford  (Earl  of)     370 

Legal  V.  Miller  415,  421,  422 

Legh  V.  Warrington  (Earl  of)  95,  96 

Le  Grice  v.  Finch  241,  247 

Leigh  V.  Leigh  381 

Le  Jeune  v.  Budd  192,  193 

Leman,  Ex  parte  16 

Lenehan  v.  M'Cabe  48,  49 

Le  Neve  v.  Le  Neve  22,  36 

Leonard  v.  Leonard  18 

Leslie  v.  Leslie  259,  200 

V.  Tompson  420 

Lethbridge  v.  Thurlow  326,  327 

Lewin  v.  Lewin  256 

V.  Okley  85 

Lewis  V.  Bond  41,  45 

T.  Hill  354 

Ley  V.   Cox  399 

Lichfield  v.  Baker  279 

Lightfoot  V.  Heron  425. 

Lincoln  v.  Windsor  211 

Lister  v.  Lister  398 

Littleton  v.  Hibbins  92 

Livesay  v.  Redfern  242 

Lloyd  V.  Branton  175,  186,  194 

V.  Harvey  333 

V.  Lloyd  180,  185 

Lobley  v.  Stocks  293,  298 

Lomas  v.  Wright  70,  94 

Londesborough  (Lord)  v.  Somerville     258 
London  and  Birmingham  Railway 

Company  v.  Winter  422 

(The  Mayor  of)  v.  Russell      288, 

289,  294 


Long  V.  Dennis 

V.  Long 

V.  Ricketts 

V.  Short 

Lord  V.  Godfrey 

V.  Sutcliffe 

V.  Wightwick 

Loriraer  v.  Lorimer 
Loscombe  v.  Wintringham 
Lovegrove,  Ex  parte 

V.  Cooper 

Lowe  v.  Manners 

v.  Peers 

Lowndes  v.  Lane 

V.  Lowndes 

Lowther  v.  Carlton 
Lucas  v.  Calcraft 
Lucy  v.  Gardener 


111,  116,  179.  193 

'  259 

194 

74,  103,  242,  256 

280 

293 

275 

399 

255 

225 

94 

197 

187,  108 

423,  424 

258 

36,  37,  49 

403 

73,  74 


I 


TABLE     OF     CASES. 


XXIU 


Lupton  V.  AVhite 
Lutkins  v.  Leigh 
Lyddon  v.  Ellison 
Lyne  v.  Lyue 
Lyon  V.  Baker 

V.  Colville 

Lysaght  v.  Walker 

M'Calmont  v.  Rankin 
M'Dermott  v.  Kealy 
Mackensie  v.  Mackensie 
Mackie  v.  Mackie 
Mackinnon  v.  Peach 
Mackreth  v.  Symmons 
Macnamara  v.  Jones 
M-Queen  v.  Farquhar 
Maddeford  v.  Austwick 
Magrave  v.  Archbold 
Maitland  v.  Wilson 
Majoribanks  v.  Hovenden 
Slakeham  v.  Hooper 
Malcolm  v.  Martin 

V.  O'Callaghan 

Maiden  v.  Menill 
Malins  v.  Freeman 
Mallory  v.  French 
Malpas  V.  Ackland 
Mangles  v.  Dixon 
Mann  v.  Copeland 

V.  Fuller 

Manning  v.  Purcell 

V.  Spooner 

V.  Thesiger 


371 

59,  69,  73,  74,  78 

326 

401 

210 

94,  290 

83 


290, 


Mansell  v,  Mansell 

Manser  v.  Back 
Manson  v.  Baillie 
Marples  v.  Bainbridge 
Marsh  v.  Evans 

V.  Lee 

Marshall  v.  Bremmer 

V.  Collett 

V.  Frank 

V.  Holloway 

Martin  v.  Cotter 


V.  Drinkwater 

V.  Mitchell 

V.  Pycroft 

Martyn  v.  Ferryman 
Masham  (Lord)  v.  Harding 
Mason  v.  Armitage 


36 

259 

291 

'  280 

293 

35,  43 

218 

37 

425 

427 

17 

48,  49 

78,  79 

261 

184,  185,  225 

16 

426 

255 

44 

20 

253 

302 

237 

102 

297 

35,  125,  127,  138, 

142, 151 

417,  427 

210 

185,  187 

256 

22 

280 

16 

16 

209,  217,  219,  253 

45 

298,  301 

423 

414,  419 

396 


294, 


Masters  v.  Masters 
Mathews  v.  Mathews 
Mathias  v.  Mathias 
Matthison  v.  Clarke 
Maw  V.  Topham 
Maxwell  v.  Wettenhall 
Mead  v.  Orrery  (Lord) 


Meadows  v.  Kingston  (Duchess  of) 
V.  Patherick 


85 

427 

72 

72,  288,  290 

338,  339 

352,  355 

210 

427 

259 

35,  112,  155 

18 


Meggot  V.  Meggot 
Merry  v.  Abney 
V.  Ryves 


372 

403 

35 

193 


Mertins  v.  JoUiffe 
Mesgrett  v.  Mesgrett 
Metcalf  V.  Scholey 
Methuen  v.  Methuen 
Meux  V.  Maltby 
Meyer  v.  Simonsen 
Middleton  v.  Middleton 

v.  Spicer 

Mildmay  v.  Mildmay 
Miles  V.  Langley 
Mill  V.  Hill 
Miller  v.  Horton 
Millard's  Case 
Miller  v.  Warmington 
Milnes  v.  Slater 
Mills  T.  Brown 

V.  Jrflls 

V.  Robarts 

Milltown  V.  Trench 
ilinuel  V.  Sarazine 
Mirehouse  v.  Scaife 
Moffett  V.  Bates 
Mogg  V.  Hodges 
Moggridge  v.  Thackwell 
Mole  V.  Mansfield 

V.  Mole 

Molony  v.  Kernan 
Monck  T.  Monck  322, 

Montague  v.  Montague 
Moore  v.  Bennett 

V.  Frowde 

More  V.  Mayhow 
More's  Trust 
Morecock  v.  Dickins 
Morgan  v.  Morgan 
Morley  v.  Bird 

V.  Morley 

V.  Reunoldson      173, 

Morrice  v.  Bank  of  England 
Morris  v.  Timmins 
Morrison  v.  Morrison 
Morse  v.  Tucker 
Mortlock  V.  Boiler 
Moulson  T.  Moulson 
Mouutford  V.  Scott 
Mullineux  v.  Mullineux 
Mundy  v.  Mundy 
Murray  v.  Barlee 

Nagle  V.  Baylor 
Neale  v.  M'Kenzie 
Neap  V.  Abbott 
Neave  v.  Alderton 
Neesom  v.  CJarkson 
Nelson  v.  Carter 
Nelthorpe  v.  Holgate 
Neville  v.  Fortescue 

V.  Wilkinson 

New  V.  Jones 
Newman  v.  Bateson 
Newport  v.  Bury 

V.  Kynaston 

Newstead  v.  Searles 
Newton  v.  Beunet 


37 

190 

100 

296 

41 

284 

74 

78,  227 

17 

42 

36 

94 

17 

369,  372 

102 

280 

278,  280,  283 

259 

258 

338 

73,  74,  95,  98 

253 

78 

291,  293,  294 

399 

259 

17 

324,  331,  337 

253,  321,  324 

43 

208,  209,  215 

17,  55 

302 

36 

279 

241 

99 

179,  184,  187 

104 

401 

217,  219 

94 

427 

326 

50,  51,  52 

367 

402,  403 

101 

425 

427 

418,  426 

70 

53 

238 

42 

282 

203 

209,  218 

258 

219 

287,  289,  290 

48 

92 


XXIV 


TABLE     OP     CASES. 


Newton,  Ex  parte  209 

Nicholls  V.  Judson  338 

Nicholson  v.  Hooper  20 

V.  Tutin  219 

Nixon  V.  Hamilton  49 

V.  Robinson  43 

Noel  V.  Rochfort  261 

V.  Walsinghara  (Lord)  328 

Norcott  V.  Gordon  255 

Norman  v.  Morrell  76 

Norris  v.  Harrison  239 

V.  Le  Neve  49 

V.  Norris  246 

North  V.  Strafford  (Earl  and  Coun- 
tess of)  373 

Norwood  V.  Norwood  139 
Nugent  V.  Gifford     113,  155,  156,  157,  165 

Nyssen  v.  Gritton  98 

Oakes  v.  Oakes  241,  249 

V.  Strachey  283 

O'Callaghan  v.  Cooper  195 

O'Connors  v.  Bandon  (Lord)  15 

O'Hara  t.  Strange  368 

Oliver  v.  Brickland  359 

V.  Brighouse  359 

Oneal  v.  Mead  74,  78 

Onslow  V.  Mitchell  328 

V.  Wallis  226 

Ord  V.  Noel  427 
Orme  v.  Smith                                    234,  247 

Ormerod  v.  Hardman  422 

Ormsby,  In  re  225 

Osborn  v.  Brown  194 

V.  Lea  21 

Osborne  v.  Leeds  (The  Duke  of)    204,  299 

Ouseley  v.  Anstruther  355 

Overend  v.  Gurney  302 

Overton  v.  Banister  20 

Ovey  V.  Leighton  18 

Owens  V.  Dickenson  101 

Oxwith  V.  Plumer  43 


Pack  V.  Bathurst 
Page  V.  Hayward 

V.  Leapingwell 

V.  Lever 

Paget  V.  Haywood 
Palmer  v.  Graves 

V.  Mitchell 

V.  Neave 

V.  Newell 

Panton  v.  Panton 
Papillon  V.  Papillon 
Parker  v.  Bloxam 

V.  Blythmore 

V.  Fearnlcy 

V.  Gerard     381, 

V.  Marchant 

V.  Parker 

Parnell  v.  Lyon 
Parrot  v.  Worsfield 
Parterichc  v.  Powlet 


386, 


103 

197 

242,  254,  255 

17 

140,  174,  186 

96 

223 

203 

328,  332 

371 

328 

223 

8,  11 

97 

387,  388,  393, 

395,  396 

96 

140 

190,  195 

241 

414 


Partridge  v.  Partridge     234,  240,  247,  249 
Paterson  v.  Scott  69,  70,  76 

Pattison  v.  Pattison  249 

Pawlet  V.  Attorney-General  35 


Pawlel's  Case 
Paxton  V.  Douglas 
Payne  v.  Compton 
Peacock  v.  Burt 
Pearce  v.  Loman 
Pearson  v.  Morgan 
v.  Pearson 


Peckering  v.  Kempton 
Peers  v.  Needham 
Pembroke  v.  Eyre 
Penn  v.  Baltimore  (Lord) 
Pennington  v.  Beechey 
Penny  v.  Avison 

V.  Watts 

Peppin  T.  Lovewell 
Perkins  v.  Bradley 
Perkyns  v.  Baynton 
Perrin  v.  Lyon 

Perry  v.  Whitehead  

Peterborough  (Bishop  of)  v.  Mortlock  240 
Petre  v.  Bruen  102 

V.  Petre  254 

Pettiward  v.  Pettiward  233 

Peyton  v.  Bladwell  202 

Bury  139,  193 


233,  234 

322,  323 

13 

7 

72 

22 

257 

367 

399,  401 

19 

373 

18 

219 

13,  40,  41 

266 

49,  52 

261 

179 

336 


Phayre  v.  Peree 
Philanthropic  Society  v.  Kemp 
Philips  V.  Gary 
Phillips  V.  Sargent 

V.  Turner 

Phiney  v.  Phiney 
Phipps  V.  Anglesea  (Lord) 
Pickering  v.  Pickering 
Pickup  V.  Atkinson 
Pierce  v.  Locke 
v.  Snaveling 


Pierson  v.  Garnet 
Piggott  V.  Morris 
Pigot's  Case 
Pike  V.  Hoare 
Pimm  V.  Insall 
Pinchon's  Case 
Pinnell  v.  Hallett 
Pitcairn  v.  Ogbourne 
Pitt  V.  Camelford 

V.  Pidgeon 

Piatt  V.  Piatt 
Plumb  V.  Fluitt 
Plunket  V.  Lewis 

V.  Penson 

Pole  V.  Somers  (Lord) 
Pollock  V.  Croft 
Pomfret  (Earl  of)  v 
Poole  V.  Bott 
Poole's  Case 
Pope  V.  Garland 

V.  Harris 

Popham  V.  Bamfield 


35,  355 

79 

234 

283 

247 

348 

261 

276,  281,  282 

279,  281,  283 

327 

235 

2G1 

111 

130, 139 

373 

98 

92 

354, 355 

415,  422 

238 

287,  289,  290 

322 

38,39 

339,  341,  343 

93,  99,  104 

326,  329 

192 

Windsor  (Lord)       53 

185 

354 

44,  45 

426 

135 


Portarlington  (The  Earl  of)  v.  Soulby     18 
Porter  v.  Smith  252 


TABLE     OF     CASES. 


XXV 


Portlock  V.  Gardner 
Portmore  (Lord)  v.  Morris 
Potter  V.  Sanders 
Powdrell  v.  Jones 
Powel  V.  Cleaver     26G,  306, 


Powell  V.  Dillon 

V.  Merrett 

V.  Robins 


515,321 


Powjs  V.  Mansfield 
Preece  v.  Seale 
Prendergast  v.  Prendergast 
Preston  v.  Tubbin 
Price  V.  Dyer 

V.  llacaulay 

V.  North 

V.  Price 

Probert  v.  Clifford 
Procter  v.  Cowper 
Prowse  V.  Abingdon 
Pulling  V.  Reddy 
Pulsford  V.  Hunter 
Pulteney  v.  Warren 
Purse  V.  Snaplin 
Pye,  Ex  parte 
Pym  y.  Blackburn 
V.  Lockyer 


243, 


313. 


223 

406,  408 

35 

353 

307,  314,  315, 

331,  336 

41 

227 

97 

,324,325,333 

197 

273 

54 

421,  422 

424 

97 

18 

77,  78 

53 

72 

115,  134 

237,  249 

402 

235,  240 

321,  333,  337 

408 

314,  321,  324 


Queen's  College  v.  Sutton 


241 

Radburn  v.  Jervis  290 

Radnor  (Lady)  v.  Vandebendy  15 

Ramsbottom  v.  Gosden  419,  422 

Ramsden  v.  Hylton  426 

V.  Jackson  92 

Rancliffe  (Lord)  v.  Parkyns  19,  80 
Randal  v.  Payne               125,  173,  179,  197 

Randall  v.  Russell  259 

Rann  V.Hughes  416 

Raphael  v.  Boehm  261 

Raske  v.  Hart  223 

Raven  v.  Waite  258 

Rawlins  v.  Powell  339 

v.  Rawlins  259 

Rawson,  Ex  parte  16 

Ray  V.  Stanhope  328 

Raymond  v.  Broadbelt  241 

Read  v.  Strangeways  255 

Ready  v.  Colson  128 

Redman  v.  Redman  203 

Reed  v.  Freer  54 

Revell  V.  Revell  92 

Reves  v.  Heme  175,  180 

Reynell  v.  Sprye  423 

Reynish  v.  Martin     73,  110,  113,  115,  135, 
147,  148,  160,  162,  163,  182,  183,  194 

Rice  V.  Rice  43 

Rich  v.  Jackson  406,421 

Richards  v.  Baker  188 

V.  Richards  238,  243 

Richardson  v.  Elphinstone  338 

V.  Greese  337,  338,  340 

V.  Horton  93,  98 

V.Jenkins  91 


Ricbman  v.  Morgan 

Rickard  v.  Barrett 

Rider  v.  Wager 

Ridges  V.  Morrison     79,  289, 

Ridout  V.  Payne 

V.  Plymouth 

Rigbtson  v.  Overton 
Rishton  v.  Cobb 
Rittson  V.  Stordy 
Roberts  v.  Pocock 

V.  Roberts 

Robertson  v.  Pett 
Robinson  v.  Addison 

V.  Briggs 

V.  Geldard 

V.  Gov.  of  London 

V.  Page 

V.  Pett 

V.  Tonge      57,  59, 

V.  Wall 

V.  Whitley 

Robley  v.  Robley 
Roch  V.  Callen 
Roddy  V.  Williams 
Rogers  v.  Clarke 

V.  Seale 

V.  Soutten 

Rome  V.  Young 
Ronalds  v.  Feltham 
Roome  v.  Roome 
Rosewell  v.  Bennet 
Rouse's  Estate,  In  re 

V.  Barker 

Rowe  V.  Rowe 

V.  Teed 

Rudge  V.  Winnall 

Rudstone  v.  Anderson 

Russel  V.  Russel 

Russell  V.  Clowes 

V.  Dickson  259,  290, 


Rutherford  v.  Maule 
Rutter  V.  Bartley 
Ryan  v.  Daniell 
Ryder  v.  Wager 

Sadler  v.  Turner 
Sagitary  v.  Hyde 
St.  Albans  (The  Duke  of)  v. 
clerk  286,  288,  290, 

St.  Luke's  V.  St.  Leonard's 
Salisbury  v.  Salisbury 
Salisbury's  (Lord)  Case 
Samuel  v.  Ward 
Sanders  v.  Deligne 
Saunders  v.  Dehew 

V.  Drake 

Savage  v.  Foster 

V.  Humble 

Savile  v.  Blacket 

V.  Savile 

Sawrey  v.  Rumney 
Say  V.  Barwick 
Sayer  v.  Sayer 
Scales  V.  Collins 


327 

76 
74,  246,  247 

290,  292,  293 

287 

78 

139 

179 

227 

238,  247,  256 

200,  202,  204 

224 

240 

49,  53 

79 

Hospital   79 

421,  422 

208 

60,  63,  67,  69 

423 

337 

290 

290,  292 

43 

240 

8 

259 

73 

96 

324,  336,  337 

330,  331,  337 

258,  260 

370 

338,  340 

18 

260 

242,  251 

39,  157 

227 

291,  298,  299 

227 

19 

426 

247 

238 
62,  68,  70,  80 
Beau- 

291,  295,  298 

368,  369 

358 

139 

343 

5,7 

7,35 

261 

19 
156 
242,  253 
328 
290 
425 
237 

72 


XXVI 


TABLE     OP     CASES. 


Scattergood  v.  Harrisoa 
Sclater  v.  Cottara 
Scott  V.  Hansoa 

V.  Scholey 

V.  Scott 

V.  Tyler 

Seed  V.  Bradford 


209 
211 
424 
100 
73,  204 
183,  187 
341,  342 


SemphiUv.  Daily  111,115,139,140,  171,175 
Severs  v.  Severs  242 

Seymour  v.  Nosworthy  2 

Shaftesbury  v.  Marlborough  301 

Shaftsbury  v.  Sbaftsbury         244,  245,  250 
Sbakels  v.  Richardson  94 

Shalcross  v.  Dixon  54 

Shallcross  v.  Finden  96 

Sharpe  v.  Scarborough  (The  Earl  of)    101 
Shaw  V.  Borrer  96 

V.  Xeale  54 

V.  Thackray  425 

Shee  V.  French  89 

ShefHeld  v.  Coventry  322 

V.  Orrery  (Lord)  188 

Sheldon  v.  Cox  48 

Sheppard  v.  Kent  104 

Sherly  v.  Fagg  6 

Sherriff  v.  Axe  209 

Sherwood,  In  re  210,  214 

Shine  V.  Gough  7 

Shiphard  v.  Lutwidge  85,  93 

Shirley  v.  Ferrers  103,  204 

V.  Stratton  .  406,  425 

Shirt  v.  Westby  257 

Shrewsbury  and  Birmingham  Rail- 
way   Company   v.    London    and 
Northwestern  Railway  Company         427 
Shudal  V.  Jekyll      306,  307,  310,  311,  312, 
315,  331,  336 


Shuttleworth  v.  Greaves 
Sibley  v.  Perry 
Sibson  v.  Fletcher 
Siddon  v.  Charnells 
Sidebotham  v.  Watson 
Silk  v.  Prime 
Simmons  v.  Vallance 
Singleton  v.  Hopkins 
Sitwell  v.  Bernard 
Skirving  v.  Williams 
Slattcr  V.  Norton 
Sleech  v.  Thorington 
Smith  V.  Adams 

V.  Bruning 

V.  Butler 

V.  Capron 

V.  Chichester 

V.  Cowdery 

V.  Fitzgerald 

V.  Lay 

V.  Strong 

Soames  v.  Robinson 
SoUey  v.  Gower 
Somerset    (Duke    of) 

(Duchess  of) 
Sorrell  v.  Carpenter 
Sowden  v.  Sowdca 


251, 
238. 


239 
240 

19 

6 

247 

88 
240 
401 
260 
282 
252 
240 
'  402 
202 

98 

45 

13 
195 
253 
212 
325 
94,  104 

99 
V.   Somerset 

320 

54 
349,  351 


Spackman  v.  Timbrell 
Sparkes  v.  Cator 
Sparrow  v.  Friend 

V.  Josselyn 

Speer  v.  Crawter  367,  368. 

Spencer  v.  Spencer 

V.  Topham 

Spinks  V.  Robins 
Spire  V.  Smith 
Spong  V.  Spong 
Spoouer's  Trusts,  In  re 
Spoule  V.  Prior 
Sprigg  V.  Sprigg 
Spunner  v.  Walsh 
Spurway  v.  Glynn 
Spyer  v.  Hyatt 

V.  Spyer 

Stackpole  v.  Beaumont 

Stahlschmidt  v.  Lott 

Stammers  v.  Halliley 

Stanes  v.  Parker 

Stanley  v.  Potter  236,  238, 

V.  Robinson 

V.  Wrigley 

Stapilton  v.  Stapilton 
Stapleton  v.  Conway 
Steadman  v.  Poole 
Steed  V.  Whitaker 
Stephenson  v.  Dowson 

V.  Royce 

Stewart  v.  Alliston 

V.  Conyngham  (Marq.  of) 

V.  Hoare 

Stikeman  v.  Dawson 
Stirling's  Case 
Stocken  v.  Dawson 
V.  Stocken 


112,173 

182! 


98 

326,  327 

386,  399 

241 

369, 370 

244,  245 

49,  53 

324,  337 

290 

74,  256 

236 

76 

141 

44 

259 

403 

367 

174,  179, 

183, 197 

255 


210, 
244, 


49, 


Stonehouse  v.  Evelyn 
Story  V.  Johnson 

v.  Windsor  (Lord) 

Stott  V.  HoUingworlh 
Strange  (Lord)  v.  Smith 
Strathmore  (Countess  of)  v.  Bowes 
Stratton  v.  Grymes  115,  153,  154,  1G3, 

185 
Stribblehill  v.  Brett  202 

Strickland  v.  Strickland  73,  402 


256 
218 
246 
423 
402 
205 
201 

44 

50 
241 

40 
423 

45 
217 

20 

289 

209 

340 

259 

398,  399 

10,  17,  55 

259 

191,  193 

204 


Strode  v.  Blackburne 
Strong  V.  Ingram 
Sturge  V.  Dimsdale 

V.  Starr 

Sugdea  v.  Crossland 
Suisse  V.  Lowther 
Sullivan  v.  Jacob 
Surtees  v.  Parkin 
Sutherland  v.  Cooke 
Sutton  v.  Jcwke 

v.  Jones 

v.  Sharpe 

Swan  V.  Swan 
Sweet  V.  Southcote 
Sykes  v.  Hastings 
Symons  v.  James 


9 

290 
79 
16 

223 
289,  290,  326 

425 
76 

279 
115,  173,  180 

219 

223 

399,  400 

37 

219 
97 


TABLE     OF     CASES. 


xxvn 


Talbot  V.  Ford 
Talbott  (Sir   John) 

(Duke  of) 
Tanner  v.  Florence 
V.  Tanner 


426 
Shrewsbury 

319,  337 

44 

253 

40 

259 

226,  227 

259 

210 

41,  44 

97,  251 

21 

219 

79 

204 

54 

331 

259 

339 

96 

400 

241 


Taylor  v.  Baker 

V.  Clarke 

V.  Haygarth 

V.  Hibbert 

,  In  re 

V.  Stibbert 

V.  Taylor 

Teasdale  v.  Teasdale 
Tebbs  V.  Carpenter 
Tempest  v.  Tempest 
Tennant  v.  Brail 
Tennison  v.  Sweeny 
Thellusoa  v.  Woodford 
Thomas  v.  Attorney-General 

V.  Bennet 

V.  Britnell 

V.  Gyles 

V.  Thomas 

Thomond  (Lord)   v,  Suffolk   (Earl 

of)  231, 234,  247,  249 

Thompson  v.  Blackstone  427 

V.  Simpson  20,  36 

V.  Towne  103 

Thring  v.  Edgar  18 

Thynne  (Lady)  v.  Glengall  (Earl  of) 

325,  327,  329,338,  339 

70,  80 

414 

72 

59,  73,  77 

209,  210 

340 

70,  73,  74,  77,  103,  256 

49 

55 

241 


Tidd  V.  Lister 
Tinney  v.  Tinney 
Tipping  V.  Power 

V.  Tipping 

Todd  V.  Wilson 
Tolson  V.  Collins 
Tombs  V.  Roch 
Toulmin  v.  Steere 
Tourville  v.  Naish 
Townsend  v.  Martin 
Townshend  (The  Marquis  of)  v.  Stan- 
groom  406,  415,  417,  419,  421 
V.  Windham  103 


Trench  v.  Harrison 
Trevanian  v.  Mosse 
Treves  v.  Townshend 
Trevor  v.  Rawlinson 
Trident,  The 
Trimmer  v.  Bayne 


352 

16 

260 

5 

81 

306,  307,  311,  322, 

332,  337 


Troughton  v.  Troughton 
Trower  v.  Newcome 
Tubbs  V.  Broadwood 
Tucker  v.  Henzill 
Tuckfield  v.  Buller 
TuUoch  V.  Hartley 
Tunstall  v.  Trappes 
Turner  v.  Cox 

V.  Harvey 

V.  Morgan 

V.  Turner 

Turton  v.  Benson 
Twining  v.  Morrice 


381,  387,  396. 


103 

424 

352 

49 

400 

373 

48 

95 

427 

399 

260 

202 

427 


Twining  v.  Powell  325,  332,  336 

Twisden  v.  Twisden  328 

Twycross  v.  Moore  49 

Tylee  v.  Webb  49 

Tynt  V.  Tynt  60 

Tyrconnell  v.  Ancaster  (Duke  of)  355 

Tyrell  v.  Tyrell  259 

Underwood  v.  Hitchcock  423 

V.  Morris        HI,  112,  134,  135, 

147,  148,  162,  164,  174,  183 

Upton  V.  Prince  323 

Valentine  v.  Middleton  396 

Van  V.  Corpe  45,  422 

Varley  v.  Winn  257 

Vaughan  v.  Buck  283 

V.  Magill  45 

V.  Vanderstegen  21 

Vauxhall  Bridge  Company  (The)  v. 

Spencer  (Earl  of)  204 

Vernon  v.  Van  drey  93 

Vickers  v.  Oliver  73 

Vignolles  v.  Bowen  45 

Vincent  v.  Godson  92 

V.  Newcombe  239 

Vintner  v.  Pix  139 

Vivian  v.  Mortlock  255 

Vouillon  V.  States  416 


W.  V.  B. 

Wace  V.  Bickerton 
Wagstaffv.  Read 
Wake  T.  Conyers 
Walker  v.  Childs 

V.  Meager 

■  V.  Smallwood 

V.  Walker 

Wall  V.  Wall 

Wallace  v.  Donegal  (Lord) 

V.  Pomfret 

Wallis  V.  Briglitwell 

V.  Kibble 

Wallop  V.  Hewett 

Walsh  V.  Gladstone 

Walter  v.  Maunde  44 

Walwyn  v.  Lee  9,  11,  ]3 

Warde  v.  Warde  354 

Ware  v.  Egmont  (Lord)  39,  48 

Waring  v.  Hotham  369 

V.  Manchester,  Sheffield  and 

Lincolnshire  Railway  Co. 
Warner  v.  Baynes  381,  385,  396 

Warren  v.  Davies 

V.  Postlethwait 

V.  Warren 


185 

355 

17 

369,  372,  373 

79 

85,  102 

54 

406,  411 

250 

19 

344 

261 

207 

287,  289,  290 

298 


Warrick  v.  Warrick 
Warwick  v.  Hawkins 
Wasse  V.  Heslington 
Wathen  v.  Smith 
Watkins  v.  Williams 
Watson  V.  Lincoln  (Earl  of) 
V.  Marston 


312 

418 


T.  Northumberland  (Duke  of) 


428 

398 

97 

242 

326 

49,  50 

301 

97 

341 

396 

325 

426 

398 


XXVIU 


TABLE     OF     CASES. 


Watson  y.  Rcid 
Watts  V.  Crcsswell 
V.  Hailswell 


Weall  V.  Rice 
Wearing  v.  Wearing 
Webb  V.  Direct  London  and  Ports- 
mouth Railway  Company 


290 
20 

20 
327,  322 
282 


426 


V.  Grace  173,  187 

V.  Shaftesbury  (Earl  of)       212,  224 

Webster  v.  Alsop  76 

V.  Hale  237,  240 

Wedderburn  v.  Wedderburn  223 

Wedgewood  v.  Adams  425 

Weir  V.  Chamley  103.  256 

Weiss  V.  Dill  '218 

Wellesley  v.  Wellesley  348 

West  v.  Kerr  189,  197 

V.  Reid  48 

Weston  V.  Berkeley  17 

Whaley  v.  Dawson  372,  400 

Wharton  v.  Durham  (Lord)  343 
Wheeler  v.  Bingham 


V.  Warner 

Whitbread  v.  Jordan 
White's  Case 

V.  Cuddon 

V.  Wakefield 

Whorwood  v.  Whorwood 
Wickendcn  v.  Rayson 
Wigg  V.  Wigg 
Wightwick  V.  Lord 
Wilbraham  v.  Livesay 
Wilcocks  V.  Wilcocks 
Wild  V.  Wells 
Wilde  V.  Gibson 
Wildgoose  v.  Wayland 
Wilkes  V.  Wilkes 
Wilkins,  In  re 
Wilkinson  v.  Wilkinson 
Willan  V.  Lancaster 

V.  Willan 

Willctt  V.  Bhmdford 
Williams  v.  Armstrong 

v.  Cliitty 

V.  Kershaw 

V.  Lambe 

V.  Lonsdale  (Lord) 

V.  Powell 

Williamson  v.  Gihon 


111,  117,  135,  140, 

141,  175,  185,  186 

190 

39,  46 

426 

427 

42 

353,  354 

72 

35,  55 

275 

41,  45 

348,351,  352 

403 

52 

38 

354 

402 

217 

97 

427 

223 

255 

96,  98 

79 

8,  11,  14 

226 

223 

202 


Williamson  v.  Wooton  426 

Willis  V.  Kibble  212 

Willoughby  v.  Willoughby  7 

Willox  V.  Rhodes  242,  253 

Wills  T.  Slade  395,  400 

Willmott  y.  Jenkins  255 

Wilson  y.  Brownsmith 

V.  Fielding 

V.  Knubley 

y.  Maddison 

Winch  V.  Winchester 


Windham  v.  Windham 
Winter  v.  Anson  (Lord) 
Wintle  V.  Carpenter 
Wisden  v.  Wisden 
Wiseman  v.  Forster 
Wolestoncroft  v.  Long 
Wood  y.  Briant 

V.  Ordish 

V.  Penoyre 

V.  Richardson 

V.  Wood 


240 

70 

94 

258,  259 

416,  419 

287,  289,  298 

49,  50,  51 

367,  370 

97 

134 

84,  98 

260,  341 

102 

257 

427 

357 

Woodhouse  v.  Shepley  198 

Woolan  y.  Hearn  404 

Worrall  v.  Harford  225 

Worsley  v.  Scarborough  (Earl  of)  49,  53,  54 
Worthington  v.  Eyans  191,  193 

V.  Morgan  .  39 

Wray  v.  Field  290 

Wren  v.  Bradley  205 

Wride  v.  Clark  104 

Wright  V.  Hall  141 

V.  Snowe  21 

V.  Warren  253 

Wyatt  V.  Barwell  36 

Wyche,  In  re  214 

Wynch  v.  Wynch  260 

Wythe  V.  Henniker  74,  76 


Yates  V.  Maddan 
Yelverton  v.  Newport 
Yockney  v.  Hansard 
Yonge  V.  Furse 
York  V.  Brown 


261 

139 

297,298 

179,  184,  196 

211 


(Mayor  of)  v.  Pilkington      369,  372, 

533 

and   North   Midland   Railway 

Co.  V.  Hudson  210 
Young  y.  Clerk  406,  425 
V.  Hassard                             74,  103 


LIST    OF    CASES    CITED 


AMERICAN    NOTES. 


The  numbers  refer  to  the  paging  of  the  American  Edition. 


Abbott  V.    Bait,   and   Rap.   Steam 

Packet  Co.  458 

Abell  V.  Radcliff  TlO 

Abercrombie  v.  Knox  283 
Adams  v.  Brackett                    262,  269,  271 

V.  Meyrick  255 

Aday  v.  Echols  TlO 

^tna  Ins.  Co.  v.  Tyler  233 

V.  Wires  230 

Agnew  V.  Johnston  85 

Agricultural  Bank  v.  Fallen  241 

Alabama  Bank  v.  Collins  469 

Alam  V.  Jourdan  124 

Albert  v.  The  Saving  Bank  86 

Aldrich  v.  Cooper  219 

Alexander  v.  Ghiselin  196 

V.  Pendleton  69,  93 

V.  Wallace  125 

V.  Worthington  500 

Allen  V.  Berkley  646 

V.  Burke  694 

V.  Callen  551 

V.  Center  Valley  Co.      324,  327,  332 

V.  Clark  241 

V.  Wells  315,  324 

Allison  V.  Kurtz  715 
Alsop's  Appeal  500,  508 
Alston  V.  Munford  218,  256 
Alton  Marine  and  F.  Ins.  Co.  v.  Buck- 
master  624 
Amory  v.  Francis  286,  313 
Amos  V.  Horner  414 
Ancaster  v.  Mayer  250,  255 
Anderson  v.  Lemon  718 

V.  Nefif  442 

V.  Roberts  71 

Andrews  v.  Andrews  445,  472 

Anthony  v.  Leftwitch  699 

V.  Smith  509 

V.  Wilson  671 


Argenbright  v.  Campbell 
Armstrong's  Estate 
Arnold  v.  Byars 

V.  Hamer 

Aston  V.  Pye 
Ash  V.  Daggy 

V.  Livingston 

Ashburner  v.  M'Guire 
Ashley  v.  Cunningham 
Aston's  Estate 
Astor  V.  Wells 
Atchison  v.  Robertson 
Atkinson  v.  Webb 
Attorney-General  v.  Parkin 

V.  Sitwell 

V.  Tyndall 

Averall  v.  Wade 
Averill  v.  Loucks 

V.  Fallen 

Avery  v.  Fetten 
Ayres  v.  Baumgarten 
T.  Husted 


165 

444,  448,  451 

462 

319 

592 

695 

108 

506,  507,  512 

172,  175 

443,  451 

163,  179 

465 

588 

506 

688 

219 

221.  246 

220,  222^  312 

276 

240 

696 

221,  223 


Babcock,  In  re 
Backwell  v.  Child 
Bagarly  v.  Gaither 
Bagley  v.  Newman 
Bailey 


v.  Bailey 

V.  Browntield 

v.  Ekins 

v.  Richardson 

v.  Sisson 

V.  White 

V.  Wilson 

Baine  v.  Williams 
Balbeck  v.  Donaldson 
Balcom  v.  N.  Y.  Ins.  Co. 
Baldwin  v.  Johnson 

V.  Lord 

Balgney  v.  Hamilton 


226 
507 

89.  90,  107,  108,  163 
316 
684 
228 

3oa 

165 
646 
165 
181 
276 
717,  719 
122 
165 
329 
712 


XXX 


TABLE     OF     AMERICAX     CASES. 


Ball  V.  Brown 

Balliott's  Appeal 
Baker's  Appeal 
V.  BrijiOfs 


466 

512 
331, 334 
274,  275 

274 
316,  318,  324 

108 


V.  Fordyce 

V.  Wimpee 

Bank  v.  Campbell 

V.  Dundas  241 

V,  Gourdin  108 

V.  Howard  241 

V.  Wilkins  336 

V.  Martin  459 

of  Alexandria  v.  Lyman  699 

of  Michigan  v.  Carpenter  109 

of  South  Carolina  v.  Campbell     110 


of  the  U.  S.  V.  Davis 

V.  Hirst 

V.  Peabody 

Bank  of  Utica  v.  Mersereau 
Banks  v.  Ammon 
Barber  v.  The  Bank 
Barclay's  Estate 

v.  Phelps 

V.  Wainwright 

Bardwell  v.  Bardwell 


163, 164 
472 
285 
123 
179 
335 
514 
326 
551 
503 


260, 


255. 


V.  Perry    316,  318,  320,  323,  339 


Barkart  v.  Grcenshields 
Barker  v.  Buel 

V.  Rayner 

Barklay's  Appeal 
Barnes  v.  M'Christie 

V.  M'Clinton 

Barney  v.  Earle 

V.  Saunders 

Barnhart  v.  Greenshields 

Barr  v.  Day 

Barrell  v.  Joy 

Barrett  v.  Union  M.  F.  Ins.  Co 

Bartlett  v.  Glascock 

V.  Pickersgill 

Barton's  Estate 
Bates  V.  Norcross 
Bayley  v.  Greenleaf 
Baynard  v.  Norris 
Beal  V.  Vallce 
Beard  v.  Linthicum 
Beardsley  v.  Knight 
Beattle  v.  Beattie 

V.  Butler 

Beatty  v.  Smith 
Beaumont  v.  Bramley 
Beck  V.  M'Gilles 

V.  Ulrich 

Beckman  v.  Frost 
Belchier  v.  Butler 
Boll's  Estate 

V.  Hughes 

V.  Newman 

V.  Twilight 

Bellas  V.  Lloyd 

V.  M'Carthy      07. 

Bellows  V.  Stone 
V.  Stowe 


251, 


153, 


94. 


152, 


105, 
165, 


1 

672 

513 

258 

163 

160 

104 

436 

157 

168 

454 

673 

160 

714 

451 

181 

i06 

194 

■  696 

684 

684 

168 

189 

124 

685 

509 

90.  117,  444,  446 

86,  87 

89 

443 

500 

316,  326 

166,  169 

170 

99,  110,  118,  153, 

161,  182,  196 

673,  080,  684 

708 


Belshaw  v.  Bush 
Bendell  v.  Bendell 
Benford  v.  Daniels 
Bennett  v.  Robinson 
Benson  v.  Bruce 

V.  Ela     315,  322,  325, 

T.  Le  Roy 

Benton  v.  Shreeve 
Berry  v.  The  Church 

V.  The  Mutual  Ins.  Co. 

Besley  v.  Laurence  220, 

Best  V.  Stow  684, 

Bethune  v.  Kennedy 
Beverly  v.  Brook 
Bird's  Estate 
Biggleston  v.  Grubb 
Billington  v.  Welsh 
Black  V.  Blakely 
Blacket  v.  Langlands 
Blackstone  v.  Blackstone 
Blackwilder  v.  Loveless 
Blagden  v.  Bradbear 
Blair  v.  Owles 

v.  M'Donnell 

V.  Ward  240, 

Blaisdell  v.  Stevens 

Blake  v.  Blake 

V.  Heyward 

Blight's  Heirs  v.  Banks 

Bliss  V.  Thompson 

Blodget  V.  Hobart 

Bloom  V.  Noggle 

Blount  V.  Hipkins 

Blyholder  v.  Gilson 

Boggs  V.  Varner      116,  118,  153, 


V.  Warner 

Bolton  V.  Johns 
Boling  V.  Ewing 
Boiling  V.  Carter 
Bona  V.  Devant 
Bond  V.  Turner 
Bonner  v.  Ware 
Boone  v.  Barnes 
v.  Chilles 


Booth  v.  Baruum 

v.  Blundell 

Bothea  v.  M'CoU 
Botsford  v.  Burr 
Bowen  v.  Waters 
Bowers  v.  Johnson 
Bowling  v.  Cobb 
Bowman  v.  Bitlenbcndcr 
Boyce  v.  Waller 
Boyd  V.  Boyd 

V.  Hawkins 

v.  M'Lcan 

Boyer  v.  M'Culloch 
Boynton  v.  Hubbard 

v.  Rees 

Brace  v.  Marlborough 
Brackctt  v.  Miller 
Bracken  v.  Beutley 


67,  69,  90,  93 
103, 


67,  89, 


231 

469 

469 

413 

466 

328,  337 

306,  307 

696 

272 

178 

276,  280 

688,  698 

252,  504 

246 

448 

595 

167 

466 

91 

500,  508 

695 

710 

102,  163 
680 

241,  272 
160 
508 

103,  175 
09,  93 

672 

702 

113,  187 

252,  504 

718 

167,  169, 

192,  245 

102 

126 

161 

173 

467 

462 

169 

103,  104 

96.  101, 

120,  125 

160 

252 

469 

711 

698 

164 

471 

684 

71 

461 

435,  463 

682,  711 

691 

416,  672 

69, 184 

102, 108 

69 

532 


TABLE     OF     AMERICAN     CASES. 


XXXI 


Bracken  v.  Miller  164 
Bradbury  v.  White  689 
Bradford  v.  Boudinot  444 
V.  Union  Bank  of  Tennessee  695 


Bradley  v.  Root 
Brady  v.  Cubitt 

V.  Parker 

Bragg  V.  Paulk 
Brainerd  v.  Cowdrey 
Brampton  v.  Banker 
Brandt's  Appeal 
Breck  v.  Blanchard 
Bredin  v.  Kingland 
Breckenridge  v.  Brooks 
Brewster  v.  Hammell 
Brice  v.  Brice 
Bridge  v.  M'Cullough 
Briggs  V.  Holcomb 

T.  Planters'  Bank 

Bright  V.  Wagle 
Brinkerhoff  v.  Lansing 

V.  Marvin 

Brinton's  Estate 
Broadwell  v.  Broadwell 
Brooks  V.  Dent 

V.  Thulock 

V.  Wheelock 


81 
590 
684 
101 

500,  510 
92 
266 
230 
443 
471 
335 

165,  183 
321 
467 
220,  235,  276 
676 
120 
278 

444,  448 
680 
261 
691 

688,  694 


Brewer  v.  Peabody 
Brown's  Appeal 
V.  Anderson 

85 
330 
194 

V.  Brown 

680 

V.  Budd 

69 

179 

Y.  Clegg 

V.  Dawson 

717 
588 

V.  Dysinger 

V.  James 

255,  257 

717 
504 

V.  Lynch 

704,  708,  714 

718 

V,  Thompson 

V.  Wood 

311 
95 

Bruce  v.  Edwards 

283 

Bruner's  Appeal 
Brush  V.  Scribner 

220 
103 

V.  Ware 

169 

Bryant  v.  Hunters 

600 

V.  Puckett 

471 

165, 


108 
229 
194 
269 
104 

330,  332,  334 
310 
68,  69 
160 


Buchan  v.  Sumner 
Buck  T.  Blanchard 

• V.  Holloway's  Devisee 

Buckley  v.  Buckley 
Buffington  v.  Gerrish 
Bullitt  v.  Meth.  Epis.  Ch. 
Bull's  Ex'rs  V.  Bull's  Creditors 
Bumpus  V.  Platner 
Bunting  v.  Ricks 
Burk  V.  Chrisman  247 

Burlace  v.  Cook  92 

Burnell  v.  Reed  120 

Barney  v.  Spear  468 

Burnside  v.  Union  Steamboat  Co.  232 

Burns  v.  Huntingdon  Bank  227,  231 

Burr  v.  M'Euen  444 

Burrows  v.  Alter  671 

Burt  V.  Cassity  113,  165 

Burtch  V.  Hogge  696 


Burtis  V.  Dodge 
Burtus  V.  Tisdall 
Bush  V.  Bush 

V.  Golden 

Butcher  v.  Stapely 
Bushell  V.  Bushell 
Butler  V.  Stevens 
Buttrick  v.  Holden 
Byers  v.  Surget 
Byrne  v.  Byrne 

V.  Godfrey 

Byrd  v.  Byrd 


441 

327,  328,  333 

93,  101,  102,  116 

188 

156 

178 

153,  157,  166,  189 

159 

696 

586 

592 

510 


Gavins  v.  Chaubert  439,  441,  533 

Caldwell  v.  Carrington  120,  182 

v.  Kinkaid  586 

Callaghan  v.  Hall  451 

Callen  v.  Ferguson  699 

Callow  V.  Laurence  228 

Calverly  v.  Williams  680,  685 

Cammock  v.  Johnson  338 

Camp  V.  Grant  316,318,326 

Campbell's  Appeal  70,  115,  182 

V.  Brackenridge  89,  167 

V.  Campbell  708 

V.  M'Clenachen  677 

V.  Mullett  327,  332 

T.  Spencer  697 

Canfield  v.  Bostwick  265,  271,  456 

Cannon  V.  Norton  125 
Canterbury  Aqueduct  Co.  v.  Ensworth  695 

Capel  V.  Butler  274,  275 

Cark  V.  Bogardus  587,  591 

Carmichael  v.  Beck  86 

Carnmack  v.  Johnson  329 

Carpenter  v.  Koons  242 

V.  The  Washington  Ins.  Co.    233 

Carr  v.  Callaghan  125 

V.Duval  710 

Carrol  v.  Moore  469 

Carroll  v.  Johnston  89,  90,  163 

Cartaret  v.  Cartaret  506 

Carter  v.  Balfour  269 

V.  Black  230 

V.  Bank  of  Georgia  182 

T.  Champion  113,  179 

V.Hamilton  672 

V.  Jones  230 

V.  Leeper  125 

Carter's  Ex'rs  v.  Cutting  and  Wife         461 

Casey  v.  Holmes  695 

Cassel,  Ex  parte  435,  442 

Castleman  v.  Veitch  646 

Cason  V.  Round  122 

Cathcart  v.  Robinson  680,  689,  697 

Cavendish  v.  Fleming  461 
Center  v.  The  Bank    109,  113,  126, 159,  172 

v.  Blair  159 

Chamberlain  v.  Thompson  680,  684 
Chambersburgh  lus.  Co.  v.  Smith  283,  285 

Champlin  v.  Lay  tin  118 

Chandler,  Ex  parte  317 

Chandron  v.  Magee  172 

Chapman  v. Emery  83 


XXXll 


TABLE     OF     AMERICAN     CASES. 


Chapman  v.  West 
Chase  v.  Lockerman 


V.  "Woodbury 

Chaworth  v.  Beech 

Chauncey  v.  Crntchfield 

Cheeseborough  v.  Millard 

Cherry  v.  Jarratt 

Chesnut  Hill  Reservoir  Co.  v.  Chase 

Chesterman  v.  Gardner 

Chetwood  v.  Brittan 

Chew  V.  Barnett 

Childress  v.  Childress 

Choteau  v.  Jones 

Christ  V.  Diffenbach 

Christie  v.  Bishop 

Christian  v.  Ellis 

Christmas  v.  Mitchell 

Churchill  v.  Rogers 

Cicotte  V.  Gagnier 

City  Council  v.  Page 

Claghorn  v.  The  Bank 

Clapp  v.  French 

Clarendon  v.  Hornby 

Clark  V.  Blount 

V.  Blything 

V.  Burgoyne 

V.  Depew 

V.  Ely 

V.  Flint 

V.  Grant 

V.  Oakley 

V.  Partridge 

V.  Sewall 

V.  Reims 

Clark's  Ex'ors  v.  Remisdyk 

Clarke  v.  Rochester  Railroad  Com- 
pany 

V.  White 

Clason  V.  Morris 

Clay,  Ex  parte 

Claycomb  v.  Claycomb 

Clemson  v.  Davidson 

Clement  v.  Rich 

Clements  v.  Reed 

Clinan  v.  Cooke 

Clitherall  v.  Ogilvie 

Clifton  v.  Burt 

Clopton  V.  Martin 

Cloud  V.  Clinkenbeard's  Ex'ors 

Clowes  V.  Dickinson 

V.  Higginson  ^  690,  694 

Clondas's  Ex'trix  v.  Adams  '          310 

Clute  v.  Robinson  82,  180 

Clyde  V.  Simpson  267 

Coatcs  v.  Woodworth  712 

Cockell  V.  Taylor  81 

Coder  v.  lluling  714 

Codham  v.  Tinkham  648 

Cod  wise  v.  Gelston  311 

Coffin  v.  Ray  109,  113 

Cogdell's  Ex'ors  v.  The  Widow  514 


172,  174,  239,  245, 

249 

218,  250,  256,  258, 

458,  500,  501 

241,  245,  249 

506 

674 

219,  246,  272 

470 

671 

165 

674,  685 

96 

514 

179 

677,  679,  684 

117 

315, 336 

169, 198 

704 

82 

69,  157,  173,  188 

316, 323 

126 

651 

463 

232 

597 

126 

107 

104,  107,  183 

689 

124 

677,  684 

589 


700 
124 

695 
125 

124,228 
317 
461 
86 
113 
696 

687,  689 
696 
260 
684 
586 

238,  240,  243,  246, 
276 

690,  694 


Coger's  Ex'or  v.  M'Gee 

Coggill  V.  Hartford  and  New  Haven 

Railroad  Co. 
Colby  v.  Kinniston 
Cole  V.  Scott 
Coleman  v.  Coche 
V.  Coleman 


V.  Cooke 

V.  Crumpler 

Coles  V.  Trecothick 
Collier  v.  Slaughter 
CoUingwood  v.  Irwin 
Collins  V.  Hood 

V.  Hoxie 

Colson  V.  Thompson 
Comeggys  v.  Vasse 
Commercial   Bank  v. 

serve  Bank 
Commercial  Bank  v.  Wilkins 
Commonwealth  v.  Rhodes 
V.  Shelby 


87. 


413. 


679 


194 
116 
71 
508 
108 
672 
711 
416 
275 
328 
441 
710 
232 


V.  StaufiFer 


Western   Re- 

241,  246 

337 

178 

251,  256,  258, 

263 

413,  415 

458 

82,  108 

69,  85,  184 


Compton  V.  Barnes 

Conard  v.  Atlantic  Ins.  Co. 

Connecticut  v.  Bradish 

Conn.  M.  Ins.  Co.  v.  The  New  York 

and  New  Haven  Railroad 
Conner  v.  Tuck 
Conrad  v.  Harrison 
Cook  V.  Bronaugh 

V.  Gaiza 

V.  Travis 

Cooke  V.  Clayworth 
Coover's  Appeal 
Cope  V.  Smith 
Copeland  v.  Copeland 
Copis  V.  Middleton 
Cornell  v.  Prescott 
Cornish  v.  Wilson 
Cornwallis's  Case 
Correy  v.  Caxton 
Cottrell's  Appeal 
V.  Huffhes 


Covcnhoven  v.  Shuler 
Cover  V.  Black 
Cowden's  Estate 
Cowell  V.  Sikes 
Cozens  v.  Stevenson 
Cox  V.  Osburn 
Coxe  V.  Smith 
Cradle  v.  Mecn 
Craig  V.  Kittridge 

V.  M'Gehee 

Craige  v.  Craige 
Cram  v.  Mitchell 
Crane  v.  Conklin 

V.  French 

Cravener  v.  Bowser 
Crawford  v.  Bertholf 
Creed  v.  Creed 
Cresson  v.  Miller 
Creveling's  Ex'ors  v.  Jones 
Crocker  v.  Young 


235 

124 

241,  246 

116 

154 

181, 195 

124 

337,  340 

283 

183 

226,  228,  280 

242 

259,  305,  500 

155 

97,99,  181,  184,192 

231 

70,  100,  103 

531,  533,  535 

108 


240,  244 
323 
679 

91 
647 
218 
702 
469 
694 

69 
698 
337 
692 

99 

261,  573 

101 

552 

696 


684, 


691, 


TABLE     OF     AMERICAN     CASES. 


XXXUl 


Crockett  v.  Maguire 

Croft  V.  Moore 

Croome  v.  Lediard 

Crip,  Ex  parte 

Crippen  v.  Hudson 

Cripps  V.  Jee 

Cryder's  Appeal        251,  255, 

Cuff  V.  Penn 

Cumberland  v.  Codrington 

Cumming  v.  Gumming 

Cummings's  Appeal 

V.  Arnold 

Cunningham  v.  Buckingham 
Curan  v.  Colbert 
Currens  v.  Hurt 
Currin   v.  SprouU 
Curtis  V.  Blair 

V.  Lanier 

V.  Mundy 

V.  Murphy 

V.  Hitchcock 

Cushing  V.  Ayer 

Cuthbert  v.  Cuthbert        500, 

V.  Peacock 

Cuyler  v.  Ensworth 
Cyde  V.  Simpson 

Daggett  V.  Hart 
Dahlgreen  v.  Duncan 
Dakin  v.  Denming 
Dalby  v.  The  Life  Ins.  Co. 
Dale  V.  Roosvelt 
Dalzell  V.  Crawford 
Dan  V.  M'Knight 
Dana  v.  Newhill 
Dandridge  v.  Minge 
Daniel  v  Hollingshead 

V.  Mitchell 

Daniels  v.  Davidson 

V.  Sorrells 

Davey  v.  Littlejohn 
Davidson  v.  Cowen 
Davies  v.  Bradley 
Davis  v.  Cain 

V.  Gardner 

V.  Hopkins 

Day  V.  Clark 

V.  Dunham 

Deal  V.  Bogue 
Deane  v.  Test 
Deanes  v.  Scriba 
Deas  V.  Span 
Deg  V.  Deg 
Demarest  v.  Wyncoop 
Den  V.  M'Knight 

V.  Rickman 

Denning  v.  Smith 
Denny  v.  Allen 
Depeau  v.  Waddington 
Depe\y  v.  Robards 
De  Peyster's  Case 

v.  Gould 

V.  Hasbrouck 

Derby  v.  Derby 
VOL.  II. — 3 


181 
227 

673,  690 
220 
334 

690,  712 

258,  260,  514 

691 

264 

237,  241,  243 

317,  324 
691 

165,  188 
274 
157 
647 

153,  157 
69 

113,  157 
189 

119,  121 

178,  241 

503,508,510 

589 

229 

266,  269 

624 
321,  326 
437 
235 
671 
695 
69 
69 
250 
95 
124 
168 
113 
112 
109,  111 
85 
503 
267 
165 
182,  185 
106 
338 
513 
460 
466 
309,  713 
69 
183 
110 
121 
454 
104 
85 
437,  439 
712 
702,  704 
269 


De  Ruyter  v.  The  Trustees  of  St.  Peter's  193 

Deshazo  v.  Lewis 

De  Vendal  v.  Malone 

Devling  v.  Little 

Dewey  v.  Long 

De  Witt  V.  Moulton 

Dewitt  V.  Yates 

Dey  V.  Dunham 

V.  Williams 

Dickerson  v.  Tillinghast 
Dickey  v.  Thompson 
Diehl  V.  Page 
Dietrich's  Appeal 
Dietrich  v.  Heft 
Diftenderffer  v.  Winter 
Dillard  v.  Crocker 
Disbrow  v.  Jones 
Dixon  V.  Doe 

et  ux.  V.  Horner  et  al. 

Dohell  V.  Foxworthy 
Doe  V.  Alsop 

V.  Bennett 

V.  M'Michael 

V.  Reed 

Donaldson  v.  Bank  of  Cape  Fear 

V.  Benton 

V.  The  State  Bank 

Donallen  v.  Lenox 
Doneldson  v.  Pusey 
Donelson's  Adm'r  v.  Posey 
Donley  v.  Hays 
Doner  v.  Stauffer  327, 

Donnell  v.  King's  Heirs 
Dorr  V.  Munsell 

V.  Shaw 

Dorsey  v.  Clarke 
Dorsey 


Doswell  V.  Buchanan 

Doub  V.  Barnes 
Douglass  V.  Winslow 
Dow  V.  Garter 

V.  Jewell 

Dowbiggin  v.  Bourne 
Downman  v.  Rust 
Doyle  v.  Blake 

V.  Sleeper 

V.  Teas 

Dozier  v.  Lewis 


G76 
121,  126,  184 
694 
712 
179 
550 

179,  192 
586 
107 
246 
165 
445 
444 
458 
94,  116 
165 

113,  165 
455 

175,  177 
183 
671 
122 
183 
104 
672 
104 
416 
469 
697 
82 
532,  334,  338 
123 
671 

222,  224 
711 
458 


71,  102,  116,  120, 

178,  181 

276,  281 

335,  337 

681 

711 

227 

269 

591 

711 

154,  160,  194 

226 

184 

679 

508 

443 

598 

103 


Draper  v.  Bryson 

Dinkle,  Lessee  of,  v.  Marshall 

Drinkwater  v.  Falconer 

Drysdale's  Appeal 

Dubost,  Ex  parte 

Dudley  v.  Littlefield 

Dugan  v.  Ilollins  258,  ^60,  265,  6C0 

Duke  of  Norfolk  v.  Brown  7 1 6 

St.  Albans  v.  Beauclerk  551 

315 

101,  116,  120 

278 

277,  2?5 

255 

119,  179 


Duncan  v.  Fowler 
-v.  Johnson 


Dundas's  Appeal 
Dunlap  V.  Clements 

V.  Dunlap 

Duphey  v.  Frenage 


XXXIV 


TABLE     OF     AMERICAN     CASES. 


Dupree  v.  M'Donald 

.        —  V.  Thompson 

Duval  V.  Bibb  ^ 

Dunbar  v.  Vroodcock 

Dunham  v.  Gates 

.-  V.  Murdock 

Dutton  V.  Morrison 

Dwight  V.  Tomcroy  ^ 

Dyer  v.  Clark 

. V.  Pearson 

Dyose  v.  Dyosc 
Dyott's  Estate 

Earl  V.  Countess  of  Huntingdon 

of  Portarlington  v.  Soulby 

Earp's  Estate 

East  India  Co.  v.  Donald 

Eaton  V.  Benton 

Eaves  v.  Gillispie 

Ebenhardt's  Appeal 

Eberley  v.  Groif 

Ebner  v.  Goundie  180, 

Eddy  V.  Traver 

Edelen's  Ex'rs  v.  Dent's  Adm'r 

Eden  v.  Smith 

Edgerly  v.  Emerson 

Edmonds  v.  Crenshaw 

Edwards  v.  Brown 

V.  Brinker 

. —  V.  Drinker 

Eeichelburger  v.  Barnetz 

Egbert  v.  Brooks 

Egberts  v.  Word 

Elder  v.  Elder  686,  688, 

Elkinton  v.  Newman 

Elkenhead's  Estate 

Elliott  V.  Armstrong 

V.  Carter 

Ellis  V.  Burden 

. V.  Deadman's  Heirs 

V.  Ellis 

Elysville  Co.  v.  Okisko  Co. 
Elton,  Ex  parte 
Emanuel  v.  Bird 
Emerson  v.  Littlefield 
Enders  v.  Enders 
English  V.  Harvey 

V.  Lane 

Epley  V.  Witherow 
Erslvine  v.  Decker 
Erie  Bank  v.  Gibson 
Erwiu  V.  Saunders 

V.  Seigling 

Esmay  v.  Gorton  • 

E'ipy  V.  Anderson 
Eut)ank  v.  Preston 
Evans  v.  Bicicnell 

. V.  Duncan 

V.  Inglchart 

Evarts  v.  Mason 
Eversfield  v.  Eversfield 
Everts  V.  Agnes 
Evcrtson  v.  Booth 
. V.  P^vertsoH 


Everett  v.  Saltus 
Everitt  v.  Lane 
Eyre  v.  Dolphin 
v.  Potter 


85 

252,  501,  505 

107,  122 

696 

468 


Fall  V.  Simons 

Farneyhoughs's  Ex'ors  v.  Dickerson 

et  al.  461 

Frantz  v.  Garberich  162 

Farnsworth  v.  Childs  152,  170,  183 

Farnum  v.  Boutelle  286,  313 

Farwell  v.  Lowther  "^10 

Farmers  Bank  of  Canton  v.  Reynolds     274 

Bank  v.  Payne  164 

Loan  Co.  v.  Maltby      70,  117,  181 

and    Mechanics    Bank    v. 


Whinfield 
Fellows  v.  Prentiss 
Fenwick  v.  Chapman 
Ferguson  v.  Sutphen 
Ferris  v.  Crawford 
Person  v.  Monroe 
Ferussac  v.  Thorn 
Field  V.  Schieffelen 
Filby  v.  Miller 
Filley  v.  Phillips 
Filyan  v.  Laverty 
Finch  T.  Rayland 
Findlay  v.  Hosmer 
Fish  V.  Miller 
Fisher  v.  Clyde 

V.  Smart 

Fitch  V.  Peckham 
Fitzgerald  v.  Jones 
Fitzhugh  v.  Runyan 
Fitzpatrick  v.  Beatty 
Flagg  V.  Mann    100, 117,  120, 124, 125,  153, 
164,  165,  168,  188,  191,  195 


671 
107 
259 

712 
242 
322,  328,  330,  333 
690 
104 
69 
319 
319 
462 
278,  285 
122 
242 
473 
590 
460 
672 
695 


103, 


Flagler  v.  Pleiss 
Fleming  v.  Beaver 

V.  Burgin 

V.  Townsend 

Fletcher  v.  Peck 
Flint  v.  Sheldon 
Flowers  v.  Franklin 
Floyd  v.  Floyd 
Foley  v.  Burnell 
Foote  V.  Colvin 
Ford  V.  Ford 
Fordyce  v.  Willes 
Forsyth  v.  Clark 
Fort  V.  Burcli 
Foster's  Appeal 
Foster  v.  Dawlcr 
Fournier  v.  Ingraham 
Foust  v.  Mooreman 
Fowke  V.  Woodward 
Fowler  v.  Barksdale 

V.  Fowler 

V.  Willoughby 

Fox  v.  HefFner 

V.  Mackreth 

Foy  V.  Foy 
Franchot  v.  Leach 


702 

227 

189 

197 

69 

704 

534 

471 

532 

712 

509 

591 

694 

197 

70,  71,  115,  182 

690 

443 

153,  647 

183 

276 

588 

513 

712 

435 

717 

671 


TABLE      OF     AMERICAN     CASES. 


XXXV 


309, 


169, 


Franklin  v.  Roberts 
Frazier  and  Wife  v.  Vaux 
Frazer  v.  Western 
Freedly  v.  Hamilton 
Freeman  v.  Doming 

V.  Hill 

V.  Mebane 

Freemantle  v.  Banks 
Freemoult  v.  Dedire 
French  v.  Hatch 

V.  Lovejoy 

V.  The  Loyal  Company 

Frere  v.  Moore 
Fretwell  v.  Stacy 
Friedly  v.  Hamilton 
Fripp  V.  Fripp 
Frisby  v.  Ballance 
Frost  V.  Beekman 

V.  Buckman 

V.  Raymond 

Frothingham  v.  Stacker 
Fry  V.  Porter 
Fryer  v.  Morris 

Fulton  Bank  v.  The  New  York  and 
Sharon  Canal  Co. 


676,  719 
466 

71 
179 
117 
110 
110 
591 
312 
535 
328 
174 

89 
450 
109 
696 
695 
86,  90,  103,  119,  120 
116 


172 
188 
155 
506 

164 


Gaither  v.  Caldwell 
Galbreath  v.  Winter 
Gait  V.  Dobrell 
Gallagher  v.  Gallagher 
Gallatian  v.  Erwin 
Gallion  v.  M'Caslin 
Gammon  v.  Stone 
Ganson  v.  Lathrop 
Gant  V.  Hunsucker 
Gardner  v.  Printup 
Garrett's  Appeal 

V.  Garrett 

V.  Veale 

V.  White 

Garrison  v.  The  Insurance  Co 

Garth  v.  Meyrick 

Garwood  v.  Eldridge's  Adm'r 

V.  Garwood 

Gasque  v.  Small 
Gaw  V.  Huffman 
Gay  V.  Hunt 
Geddis's  Appeal 

V.  Hawk 

German  v.  German 

V.  Gabbald 

Gibbes  v.  Cobb 
Gibbs  V.  Champion 
Gibler  v.  Trimble 
Gibson's  Case 
Gibson  v.  Conner 

V.  Crehore 

V.  M'Cormick 


V.  Findley 
V.  Stevens 


319, 


Giddings  v.  Seward 
Gilbert  v.  Burgott 
v.  Sutliff 


124 

501,  509 
179 

501,  513 

69,  120 

95,  120 

226 

321,  324 
672 

601,  509 
594 

465,  711 
336 
647 
232 
551 
681 
113 
696 

251,  260 
717 
444 

226,  283 

532,  534 
717 
160 
699 
89,  175 
458 
107 
455 
218,  250,  261,  280, 
511 
305 
338 

501,  513 
184 
472 


Gilday  v.  Watson 
Gill  V.  M'Atee 
Gillespie  v.  Moon 

V.  Rudd 

Gill's  Estate 

V.  Lyon 

Gilman  v.  Hamilton 
Gist  V.  Gist 
Gliddon  v.  Hunt 
Glen  V.  Gill 
Goddard  v.  Wagner 
Godsal  V.  Boldero 
Gold  V.  Death 
Goodburn  v.  Stevens 
Goodrich  v.  Downs 
Goodtitle  v.  Curamings 
Gordon  v.  West 
Gorman  v.  Salisbury 
Goss  v.  Lord  Nugent 
Goucher  v.  Martin 
Gould  V.  Eager 

V.  Hays 

V.  Williamson 

V.  Womack 

Goundie  v.  Northampton  Water  Co.       180 
Governeur  v.  Lynch        165,  182,  193,  239, 

272 

V.  Titus  684,  702 

Gower  v.  Sterner  680,  684 

Gracie  v.  New  York  Insurance  Co.         232 


118 
153 
682.  684,  686,  688,  709 
179 
595 
235 
172 
466 
108 

320,  329 

502,  509 
233 
164 
264 
322 
69 
453 
692 
691 

691,  693 
228 
469 

124,  125 
695 


Graff  V.  Castleman 
Graham  v.  Davidson 

V.  Graham 

V.  Samuel 

Granberry  v.  Granberry 
Grant  v.  Pride 
Graves  v.  Graves 

V.  Dugan 

Gray  v.  Chiswell 

V.  Paris 

V.  Miunethorpe 

Great  Falls  Co.  v.  Wooster 
Green  v.  Winter 

V.  Ramage 

V.  Slayter 


Greenfield's  Estate 
Greening  v.  Fox 
Greenwood  v.  Greenwood 

V.  Taylor 

Greer  v.  Greer 
Gridly  v.  Andrews 
Griffith  V.  Griffith      69,  122 


154,  198 
463 

603,  505 
114 
460 
463 
169,  267,  716 
712 

317,319 
124 
259 
167 

436,  439 
245 
173 

446,  671 
472 
552 
278,  286,  313 
698 
270 
152,  163,  172, 
173 
322,  438,  450 
466 
105 


Griffin  v.  Barney 

V.  Bonham 

V.  Marquardt 

Grimstone  v.  Carter  165,  178, 182,  193,  197 
Griswold  v.  Smith  194 

Grosvenor  v.  Austin  322,  329 

Guerrant  v.  Anderson  112 

Guien's  Estate  449 

Guignard  v.  .Mayrant  586.  601 

Guion  V.  Knapp*^        161,  170,  239,  243,  271 
Gwynn  v.  Dorsey  460 


XXXVl 


TABLE     OF     AMERICAN     CASES. 


Hackwith  v.  Damron  IGa,  170 

Haggerty  v.  Palmer  105 

Hagthrop  v.  Hooks's  Adra'rs  123,  125,  169 


Hain  v.  Kalbach 
Haines  v.  Haines 
Hake  v.  Herman 
Hakes  v.  Hotclikiss 
Halcott  V.  Marktiams 
Halderby  v.  Blum 
Hale  V.  Burrowdale 
Halford  v.  Wood 
Hall  V.  Clagget 

V.  Hall 

y.  Noble 

V.  Wilson's  Heirs 

Hallenback  v.  De  Witt 
Halley  v.  Younge 
Hallowell's  Appeal 

Estate 

Halsey  v.  Reed 
V.  Van  Amringe 


679 

696 

510 

672 

713 

107 

532 

552 

680 

262,  321 

161 

469 

671 

671 

250,  251 

260,  511 

264,  280 

441 


Halstead  v.  Bank  of  Kentucky  69,  93,  102, 

104,  125,  179 

Hamilton  v.  Asslin  680 

V.  Jones  694 

V.  Worloy  254 

Hammond  v.  Hammond  510 
Hanley  v.  Morse  165 
Hannegan  v.  Hannah  220 
Harwick  v.  Powel  167 
Hansen  v.  Lutz  242 
Hanson  v.  Willard  646 
Hapgood  V.  Jennison  454 
Hardy  v.  Summers  165 
Harker  v.  Conrad  275 
Harlan's  Accounts  446,  448 
Harper  v.  Reno  119 
Harrington  v.  Slade  172 
Harris  v.  Arnold  165,  181,  188,  197 
V.  Carter's  Adm'rs  172 

V.  Columbia  Insurance  Co.  684 

V.  Fly  120,  169,  265,  267 

V.  Ingledew  122 

V.  Knickerbacker  694 

V.  Martin  469 

V.  Norton  117,  120 

533 
684 
696 


Hawks  V.  Geddis 
Hawley  v.  Cramer 
V.  Mancius 


Harrison  v.  Foster 

V.  Howard 

V.  Town 


Haydon  v.  Goode 

V.  Mentzer 

Hayes  v.  Babbock 
V.  Jackson 


Hart  V.  Ilaskins  714 

V.  TcnEyck  124 

V.  The  Western  Railroad  232 

Hartley  v.  Flaherty  246 

Hartop  V.  Whitmore  '  597 

Harvey  v.  Woodliouse  239 

Haskell  v.  Allen  624 

Hassell  V.  Gridin  319 

Hassenclever  v.  Tucker  269 
Hastings's  Case                          217,219,220 

V.  Cutter  15G 

Hauberger  v.  Root  600 

Havens  v.  Havens  510 

Hawkins  v.  Embry  124 

. V.  ykeggs  413 


Haynes  v.  Mico 
Hays  V.  M'Guire 

V.  Ward 

Hazard  v.  Irwin 
Head  v.  Egerton 
Heatley  v.  Finster 
Hearns  v.  Savage 
Heckert's  Appeal 
Heilner  t.  Imbrie 
Heister  v.  Fortner 
Helm  v.  Darly's  Adm'r 

V.  Logan's  Heirs 

Hemphill's  Appeal 

Estate 

,  Maria,  Trust 

Henderson  v.  Barton 

v.  Downing 

v.  Hays 

V.  Vaulx 


Hendricks  v.  Robinson 
Hendrickson's  Appeal 
Hennessey  v.  Andrews 
Henry  v.  Morgan 

V.  Raiiiman 

Henshaw  v.  Wells 
Herring  v.  Winans 
Hersey  v.  Turbett 
Hester  v.  Hester 
Hewes  v.  Wisnell 
Heyer  v.  Pruyn 
Hibbard  v.  Jackson 
Hickerson  v.  M'Fadden 
Hiester's  Appeal 
Higginbotbam  v.  Short 
Higgiuson  v.  Clowes 
High  V.  Batte 
Hill  V.  Dey 

V.  Manser 

Hine  v.  Dodd 
Hingdome  v.  Boakes 
Ilipkins  V.  Bernard 
Ilite  V.  Ilite 
Hobart  v.  Stone 
Hobson  V.  Stout 
Hodgdon  v.  Hubbard 
Hodge  V.  Hawkins 
Hodgson  V.  Butts 

V.  Dean 

,  Ex  parte 

V.  Sliavv 

lloes  V.  Van  llolsen 
Hofling  V.  Burnham 
Hoff' s  Ai)pcal 
Hoge  V.  lloge 
Holilcn  V.  Pike 
Holland  V.  Craft 
Hollida  V.  Shoope 


283 
160 
218,  220 
218 
715 
282 
251,  253,  257,  262 
588 
109 
274, 279 
672 
91 
117,171 
469 
442,  444,  450 
69 
105,  108,  111,  179 
310 
114 
451 
448 
ees  of  451 

310 
69,  111,  113 
695,  697 
532,  534 
334 
179 
189 
164 
126,  157 
276 
121 
172 
463 
165,  167 
242 
228 
330 
446 
648 
687 
69,  117,  120,  123 
649 
226 
124,  126,  187,  189 
124, 126 
460 
471 
593 
188 
104 
462,  463 
179 
178 
317 
227 
252,  257 
189 
264 
714,  718 
241 
-105 
712 


TABLE     OF     AMERICAN      CASES. 


XXXVll 


HoUiday  v.  The  Franklia  Bank 
Hollis  V.  Whiting 
Hollister  v.  Barkley 
Hohiian's  Appeal 
Holmes  v.  Field 

V.  Holmes 

V.  Mentze 

V.  Stout 


186 

704 

124 

250,  532,  533,  534 

412 

454,  647,  648 

336 

69,  153,  167 

274 

103 

169 

551 


Holt  V.  Body 

Homes  v.  Smith 

Honore's  Ex'ors  v.  Blakewell 

Hooley  v.  Hatton 

Hood  V.  Fahnestock  71,  164,  168,  191,  195 

Hoopes  T.  Dundas 

Hoover  v.  Hoover 

Hope  V.  Henderson 

Hopkins  v.  Garrard 

Hopping  V.  Burnham 

Hosack  V.  Rogers 

Hosford  V.  Merwin 

Hoskins  v.  Everett 

Hotchkiss  V.  Forston 

Houghton,  Ex  parte 

Houlditch  V.  Mist 

Houston  V.  Westfeldt 

Hovey  v.  Blanchard 

Howard  Insurance  Co 


412 

251,  257,  260 

71 

194 

109 

314,  441 

704 

338 

698 

463 

281 

173 

163 

V.  Halsev   154,  161, 


V.  Harris 


V.  Priest 

Howe,  Matter  of 

V.  Earl  of  Dartmouth 

Howell  V.  Ashmore 

V.  Baker 

V.  Gibson 

V.  Hook 

Howry  v.  Miller 
Hoxie  V.  Carr 

Hoye  V.  Brewer 
Hubbard  v.  Fisher 
Hubbell  V.  Hubbell 
Hudson  V.  Cheatham 

V.  Isbel 

V.  Warner 

Huffman  v.  Hurlbert 
Hughes  V.  Blake 

V.  Boyd 

V.  Greaves 


164,  170,  240,  271, 
676, 


Hughson  V.  Mandeville 
Huguenin  v.  Basely 
Ilulings  V.  Guthrie 
Hull  V.  Adams 
Hunt  V.  Rousmaniere 

V.  Townsend 

Hunter  v.  Sumrall 

v.  Tatum 

Hurde  v.  Pettier 
Hurst  V.  Kirkbride 
Huson  V.  Wallace 
Hutchinson  v.  Smith 

V.  Tindall 

Hultz  V.  Wright 
Hyde  v.  Tanner 


273 
714 
714 
441 
254 
69 
714 

702,  704 
500 
105 
154,  160,  327,  329,  694, 
714 
250 
454 
258 
124 
676 
159 
283 

122,  124 

412 

246 

69,  124,  161 

165 


698, 


93 


706 
677 


112 
672 
681 
220 
117 
164 
160 
678 
465 
315 
715 
678 
684 


Ingersoll  v.  Sergeant 
Ingham  v.  Kirkpatrick 
Ingram  v.  Kirkpatrick 

V.  Morgan 

V.  Phillips 

Inloe's  Lessee  v.  Harvey 
Ins.  Co.  V.  Updegraff 
Irick  V.  Fulton 

Irvin  V.  Smith 

Jackson  v.  Andrews 

V.  Burgott 

V.  Caldwell 

V.  Chamberlain 

V.  Cornell 

V.  Croy 

V.  Dubois 

V.  Elston 

V.  Given 

V.  Haj'ner 

V.  Jackson's  Ex'rs 

V.  Ketcham 

V.  Leek 

V.  Luce 

V.  M'Chesney 

V.  Mill 

V.  Morse 

V.  Myers 

V.  Paige 


V.  Post  108 

V.  Rowe 

V.  Sharp 

V.  Town 

V.  Tuttle 

V.  Valkenburgh 

V,  Winslow 

V.  Wood 

James  v.  Hubbard 

V.  Isaacs 

V.  Mason 

V.  M'Kernon 

V.  Morey 

V.  Semmes 

Jaques  v.  Weeks      109,  111, 


Jarrett  v.  Johnson 
Jarvis  v.  Brooks 

V.  Palmer 


315, 


Jelland  v.  Stainbridge 
Jenison  v.  Groves 
Jenkins  v.  Bodley 

V.  Edridge 

V.  Fickling 

V.  Freyer 

Jennison  v.  Hapgood 
Jerand  v.  Saunders 
Jerrard  v.  Sanders 
Jewett  V.  Palmer 

V.  Woodward 

Johns  V.  Reardon 
V.  Rilardons 


Johnson's  Ex'or  v.  Clarke 
V.  Cooper 


98,  1G2 
107 
464 
107 

152,  183 
172 
233 
680 
178 

172 
193 
86,  117,  158 
110 
323,  328 
671 
108 
193 

153,  193 
671 
456 
172 

163,  183 
186 
126 
712 
713 
107 
183 

,  110,  180,  182 

95,  122,  159 

163,  183 

108,  110 

193 

163,  193 

119,  163 

712 

239,  279,  281 

231 

600 

125 

178 

551 

153,  163,  165, 

168,  180,  184 

674 

322,  325,  328, 

337,  714 

674 

188,  190 

711 

121,  165 

455,  714 

465 

239 

455 

92 

68,  123 

117,  121 

437,  439,  441 

221,  223 

179 

676 

271 


XXXVIU 


TABLE     OF     AMERICAN     CASES. 


Johnson  v.  Evans 

V.  (Jlancv 

V.  Ilubbell 

V.  Person 

V.  Stagg 

V.  Thwaltt 

V.  Toulmin 

V.  White 

Johnston  v.  Gwathmey 

V.  La  Motte 

Jones  V.  Bowles 

V.  Creveling's  Ex'rs 

T.  Davids 

\ .  Hazard 

V.  Jones  { 

V.  Lackland 

V.  Mason 

V.  Myrick's  Ex'rs 

V.  Powles 

V.  Smith 

V.  Stoekett 

V.  Williams 

V.  Zollicofl'er 

Jones's  Case 
Jordan  v.  Fenno 

v.  Sawkins 

Joynes  v.  Statham 
Judson  V.  Corcoran 
Juner  v. Johnson 
Juvenal  v.  Jackson 

Kce  v.  Kee 
Keiling  v.  Brown 
Keini's  Appeal 
Keirsted  v.  Avery 
Kelsselbrack  v.  Livingston 


121, 


Kellam  v.  Janson 
Keller  v.  Nutz 
Kellogg's  Case 
Kelly's  Appeal 

V.  Brown 

V.  Bryan 

Kendall  v.  Almy 

,  Ex  parte 

V.  Laurence 

V.  New  Eng.  Carpet  Co. 


336 

165 

699 

125 

178 

169 

122 

241 

169 

706 

70,  103 

552 

227 

695 

55,  95,  125,  163 

306 

590,  594 

275 

95 

159 

458 

460 

69,  235,  276 

439 

674 

687 

676,  689 

81,  82 

506 

116 


460 
255 
278 
238 
702 
708 
111 
181 
440 
340 
719 
676 
710 
224 
167 
456 
468 
164 
715 
166 
509 


108, 
677,  700. 
704^ 


332, 


222 


120,  159, 
708, 


Kenan  v.  Paul 
Kennedy  v.  Green 

v.  Kennedy 

Kent  V.  Plummer 

V.  Somerville 

Kcrnochan  v.  The  New  York  Bow- 
ery Insurance  Company 
Kenis  V.  8wope  153,  156,  157, 

Kerr  v.  Day  165, 

V.  Kitchen 

Ketchum  v.  Catlin 

V.  Durkee 

Key  V.  Sim[)son 

Keyser  v.  Harljeck 

Kelsey  v.  Western  250, 

Keysey's  Estate 

Kiddle  v.  Hammond 


233 
179 
168 
170 
673 
330 
682 
86 
259 
264 
466 


Kightly  V.  Kightly 
Kimball  v.  Feuner 
Kinley  v.  Hill 
King  v.  Baldwin 

v.  Hamilton 

v.  M'Vickar 

V.  State  M.  F.  Ins.  Co. 

Kington  v.  Kington 
Kinnard  v.  Kinnard 
Kiusey  v.  Rhem 
Kirby  v.  Carpenter 

V.  Potter 

Kirk  V.  Webb 

Kirnkle  v.  Wolfersberger 

Kittera's  Appeal 

Estate 

Kneeling  v.  Brown 
Knight  V.  Bunn 
Knotts  V.  Geiger 
Knouff  V.  Thompson 
Knox  V.  Plummer 

V.  Silloway 

V.  Thompson 

KoppenhafFer  v.  Isaacs 

Kramer  v.  Arthurs 

Kreider  v.  Boyer 

Krider  v.  Lafferty  165, 

Kuhn  V.  North 

Kyle  V.  Tait's  Adm'r 

Kyner  v.  Kyner 

Lacy  V.  Wilson 
Ladd  V.  Griswold 
Lake  v.  Craddock 

V.  Dove 

Lally  v.  Holland 
Lamborn  v.  Watson 
Lampton  v.  Lampton 
Lancaster  v.  Dolan 

Bank  v.  Miley 

Landes  v.  Brant 
Lane  v.  Coleman 

V.  Dickerson 

V.  Dighton 

V.  Marshall 

Lang  V.  Brevard 
Langdon  v.  Aston's  Ex'rs 

V.  Goddard 

V.  Keith 

V.  Woodcock 

Langhorn  v.  Payne 
Langton  v.  llorton 
Lanoy  v.  Atliol 

V.  Duke  and  Duchess 

Larkins  v.  Bi(i<lle 
Latliroji's  Appeal 
Lauckner  v.  Rex 
Lawrence  v.  Stratton 
Lauderdale  v.  Hallock 
Leeah  v.  Leach 
League  v.  Dend}' 
Leavett  v.  Palmer 
Lecke  v.  Morris 
Lcdyard  v.  Butler 


267 

126 
228 

282,  674 
695 
222 
233 

229,  231 

531. 533 
501 
321 

500,  513 
713 

117,  676 
278 
285 
267 
670 
184 

153, 170 

165,  194 
184 
165 
444 
96,  97 
594 
167,  192,  194 
227 

116.  125 
236 

69,  184 

321,  323,  329 

337 

109 

179 

706,  708 

125 

83 

337 

165,  194 
472 
676 
713 
125 
275 
594 
124 
680 
182 
706 
109 
276 
ofAthol  278 
680 
228 
680 

184, 189 
680 
105 
465 
681 
704 
71 


TABLE     OF     AMERICAN     CASES. 


XX  XIX 


116, 


Lee,  Appellant 

V.  Nuttall 

V.  Welsh 

Leftwich  v.  Orne 
Legal  V.  Miller 
Leggett  V.  Wall 
Leigh  V.  Crump 
Leitensdorfer  v.  Delphy 
Leman  v.  Whitlej- 
Lench  v.  Lench 
Lenox  v.  Prout 
Le  Quie  v.  French 
Letcher  v.  Cosby 
Lewis  V.  Baird 

V.  Bradford 

V.  Darling 

V.  Madisons 

V.  Mew 

Lichtenthaler  v.  Thompson 

Lieby  v.  Wolf 

Life  Insurance  Co.  v.  Cutter 

Liggett  V.  Wall 

Lightfoot  V.  Lightfoot     252,  255, 

Lightner  v.  Mooney 
Lillard  v.  Ruckers 
Lindsay  v.  Howerton 
Lister  v.  Lister 
Livermore  v.  Aldrich 
Livingston's  Case 

•  V.  Dean 

V.  Livingston 

V.  Newkirk  259, 

Lloyd  V.  Lloyd 

V.  Lynch 

T.  Rowe 

V.  Wheatley 

Locke  V.  Whiting 

Lodge  V.  Simonton 

Logan's  Adm'rs  v.  Troutman 

V.  Logan 

London  Railway  Co.  v.  Winter 

Long  V.  Short 

Longley  v.  Hall 

Lord  Abington  v.  Butler 

Irnham  v.  Child 

Lord  V.  Ocean  Bank 
Lord  Paget's  Case 
Loring  v.  Sumner 
Logan  V.  Logan 
Lounsbury  v.  Purdy 
Love  V.  Taylor 
Lovejoy  v.  Bowers 
Low  V.  Blodgett 
Lowe  V.  Morris 

V.  Peers 

V.  Peskett 

Lucas  V.  Bank  of  Darien 

V.  King 

V.  Mitchell 

Ludlam's  Estate 
Ludwig  V.  Highley 
Lupton  v.  Lupton 
Lutton  V.  Hesson 


255,  257 
714 
459 
121 
691 
119 
695 
684 
716 
713 
124 
513 
689 
179 

153, 165 
269 
153 
173 
275 
181 
249 
183 

259,  504, 
510 
165,  180,  182,  185 
112 
461 
651 
715 

437,  440 

82,  84 

257 

261,  263 
126 

126,  129 
457 
695 
672 

169,  173 
471 
464 
694 
261 
454 
685 

673,  701 
285 
105 
502 
465 
712 
108 
338 

226,230 
468 

414,  416 
306 
125 
647 
689 

510,  512 
106 

266,  289 
126 


Lyon  V.  Huntingdon  Bank  677,  678 

V.  Richardson  681 

Lyons  v.  Byrd  et  al.  460 

Lyman  v.  United  States  Insurance  Co.     684 
Lynch  v.  Dearth  70,  71,  115 

Lyon  V.  Huntingdon  Bank  677 


M'Ateer  v.  M'MulIen 
M'Bee  v.  Loftis 
M'Cahan's  Appeal 
M'Call  V.  Harrison 

V.  Peachy's  Adm'rs 

M'Campbell  v.  M'Campbell 
M'Candlish  v.  Keene 
M'Cann  v.  Letcher 
M'Caw  V.  Blunt 
M'CIure  v.  Thistle's  Ex'ors 
M'Combie  v.  Davis 
M'Combs  V.  M'Kennan 
M'Corkle  v.  Brown 
M'Cracken  v.  M'Cracken 
M'ColIough's  Appeal 

V.  Cowber 

V.  Dashiell 

V.  Somerville 


257. 
286,  310! 


169 
117 
443 
684 
461 
260 
312 
680 
467 
109 


694 
699 
'  471 
413 
165 
320,  323,  324 
109 


692, 


M'Daniels  v.  Barnum 

V.  The  Flower  Brook  Man 

Co. 
M'Dermot  v.  Lawrence 
M'Dermott  v.  Stoney 
M'Dermutt  v.  Strong 
M'Donald  v.  May 

V.  M'Donald 

V.  M'Leod 

M'Dowell  V.  Caldwell 

M'Eldery  v.  Shipley 

M'Fait's  Appeal  2 

M'Farland's  Estate 

V.  Griffiths 

M'Gahee  v.  Sneed 
V.  Gindrat 


125 


M'Gaw  V.  Huffman 
M'Giunis's  Ajjpeal 
M'GIaughlin  v.  M'Glaughlin  25 


M'Gowen  v.  Young 
M'Guire  v.  Evans 
M'Kecknie  v.  Hoskins 
M'Kim  V.  Duncan 
M'llvaine  v.  Gethen 
M'Intyre  v.  Miller 
M'Lanahan  v.  Wynant 
M'Laughlin  v.  Shepherd 
M'Learn  v.  M'Lellan 
M'Mahou  V.  Spangler 
M'Mechan  v.  Griffing 
M'MuIlin  V.  Brown 

V.  Scott 

M'Pherson  v.  Israel 

M'Raven  v.  M-Guire 

M'Whorter  v.  Benson 

Manchester  Iron  Manufacturing  Co 

V.  Sweeting 
Macon  v.  Sheppard 


160 
714 
312 
312 
706 
125 
676 
466 
681 

255,  257 
448 
82 
122 
159 
218 

221,  281 

266,  269. 
504 
125 

500,  503 
166 
458 
412 
229 
269 
165 
264 

674,  682 
165,  167,  178,  188 
511 
471 
460 
183 
438,  441,  448 


283 
165 


xl 


TABLE     OF     AMERICAN     CASES. 


Maddox  v.  Maddox  412,  416 

Magee  v.  Cowperthwaite  469 

Mallory  v.  Stodder  109,  184 

Mann's  Appeal  111 

V.  Mann  502 

Manners  v.  Manners  647 

Manning  v.  Craig  500 

V.  Manning  436 

. V.  Spooner  263 

Manhattan  Co.  v.  Evertson  121 

Mansell's  Estate  264 

Manser's  Case  671 

Manufacturers'    Bank 

Pennsylvania 
March  v.  Pike 
Maris  t.  Southwick 
Markham  v.  Calvert 
Marks  v.  Pell 
Maries  v.  Cooper 
Marsh  v.  Lee 
Marshall  v.  Frank 

—  V.  HolloTvay 


Marsteller's  Appeal 
Martin  v.  Browning 

. V.  Jackson 

V.  Martin 

V.  Pycroft 

V.  Sale 


Mason  v.  Bogg 

V.  Fayne 

V.  Peck 

V.  Rosevelt 

Sainsbury 


Mason's  Estate 
Massey  v.  M'llvain 
Massie  v.  Grecnho-w 
Mathis  V.  Mathis 
Matthews  v.  Aiken 

V.  Deraeritt 

V.  Terwilliger 


Maybin  v.  Kirby 
Mayer  v.  Galluchet 
Mayham  v.  Coombs 
Mayo  V.  Bland 
Mayor  (The)  v.  Williams 
Maywood  v.  Lubcock 
Meacham  v.  Sterns 
Mead  v.  Lord  Orrery 

V.  Steger 

Meadows  v.  Smith 

-  V.  The  Duchess  of  Kingston 


.  Bank  of 

180,  184,  186 

242,  282 

319 

235,  276 

683 

95 

88,  90,  163 

91 

469 

448 

124 

108,  166 

708 

695 

119,  178,  183,  188 

313,  318 

169 

124,  126 

•  438 

232 

264 

108,  183 

153 

450,  501 

231 

113,  165 

695 

81,  159 

465 

109,  114,  186 

503,  511 

152 

69, 124 

437,  439 


126 
441 
104 
672 
164 
92 


Mechanics'  Bank  v.  Edwards 

Meech  v.  Allen 

Mense  v.  M'Lean 

Merrill  v.  Moore 

Merriinan  v.  Russell 

Messervey  v.  Barelli 

Mcstacr  v.  Gillespie 

Meth.  Epis.  Church  v.  Jaques 

Meux  V.  Bell 

Mevcy's  Appeal 

Miller  v.  Beverlcys 

v.  Chctwood 

v.  Gotten 


183,  276 

223,  324 

152 

470 

624 

241 

708 

182,  713 

157 

240 

460 

684,  688 

679,  708 


Miller  v.  Cresson 

V.  Estell 

V.  Harwell 

V.  Henderson 

V.  Jacobs 

V.  Johnson 

V.  Schackelford 

V.  Wack 

Miller's  Estate 
Mills  V.  Eden 
Milnes  v.  Slater 
Minor  v.  Dabney 

V.  Ferris 

Mirehouse  v.  Scaife 
Mitchell  V.  Holmes 

V.  Winslow 

Mix  V.  Hotchkiss 
Moale  V.  Buchanan 
Mocatta  v.  Morgatroyd 
Moliere  v.  Pennsylvania  Ins.  Co 
Mollan  V.  Griffith 
Monck  V.  Lord  Monck 
Monticello  v.  MoUison 
Moody  V.  Payne 
Mooney  v.  Dorsey 
Moore  v.  Campbell 

V.  Clay 

V.  Hilton 

V.  Smith 

Mordecai  v.  Tankersly 


153, 


Morecock  v.  Dickens 
Moreland  v.  Lemasters 
Morey  v.  Herrick 
Morgan  v,  Seymour 
Morrice  v.  Bank  of  England 
Morrill  v.  Morrill 
Morris  v.  Morris 


V.  Nixon 

V.  Oakford 

Morrison  v.  Beckwith 

V.  Blodgett 

V.  Kurtz 

Morse  v.  Godfrey 
Morss  V.  Elmendorf 
Mortimer  v.  Orchard 
Morton  v.  Perry 

V.  Robards 

V.  Rose 

Mosely  v.  Lane 
Moses  V.  Murgatroyd 

V.  Ranlet 

Mott  V.  Clark 

V.  Harrington 

Moran  v.  Hays 
Muckenfoss  v.  Heath 
Muir  V.  Schenck 
Muirhead  v.  Kirkpatrick 
Mulhevan's  Ex'rs  v.  Gillespie 
Mumper's  Appeal 
.Mundine  v.  Pitts 
Mundy  v.  Vawter 
Mure,  Ex  parte 
Murphey  v.  Hubert 


161 
'  109 
258 
677 
222 
256 
165 
125 
449 
219 
263 
504 
553 
261,  266,  269 
458 
109 

235,  276 
684 
161 
684 
255 
591 
232 
338 
■  108 
691 
93,  102,  120,  121 
594 
717 
672 
178 
182 
718 
220 
312 
650 
306,  310,  317,  319,  324, 
328,  463,  715 
676 

227,  229 
247 

328, 337 
276,  281,  320 


337, 


310, 


108 
699 
124 
502 
113 

84 

704 

680 

'  278 

69,  82,  83,  184 

125 

674,  715 

467 

81 
275 
586 
444 

69 

179 

274 

717,  719 


TABLE     OF     AMERICAN     CASES. 


xli 


Murray  v.  Ballon 

V.  Finster 

V.  Lylburn 

V.  Murray 


Murrill  v.  Neill 

Muse  V.  Letterraan 

Musselraan's  Estate 

Mutual  Assur.  Society  v.  Stowe 


117,  171,  181 

90,  171,  182 

84,  173 

315 

321,  323 

112 

595 

3,  102 


Nagle's  Appeal 

Nailer  v.  Stanley 

Nantz  V.  M'Pherson 

Nash  V.  Smallwood 

Nathans  v.  Morris 

Neale  v.  Hague 

Neal  V.  Hagthorp 

Neff  v.  Miller 

Nelson  v.  Allen 

v.  Hill 

V.  Page 

v.  Sims 

Newcombe  v.  St.  Peter's  Church 

New  England  Bank  v.  Lewis 

Newhall  v.  Pierce 

Newkirk  v.  Newkirk 

Newman  v.  Bagley 

V.  Chapman 

Newport  v.  Kinaston 

Newsom  v.  M'London 

V.  Newsom 

Newson  v.  BufFerlow 

Newton  v.  Bennett 

New  York  Bank  v.  "Worthington 

Ferry  Co.  v.  The  New  Jer- 
sey Company  218,  220,  279 
166 
241 
458 
589 
438 
269 
336 
461 
126 
188 
164 
464 
125 
104 


259,  307 

240 
93,  101 
500 
449 
673 

125,  126,  169 
223,  225 
169 
319 
462 
153 
509 
125 
166 
415 
316,  318,  326,  333 

172,  175,  183 
551 
223,  283 
463 
684 
309 
107 


Life  Ins.  Co.  v. 


Cutter 
Milnor 


Nicholls  V.  Hodges 
Nichols  V.  Judson 

V.  M'Ewen 

V.  Postlethwaite 

NicoU  V.  Mumford 

Nimraoe's  Ex'rs  v.  The  Commonw'lth 

Nolen  V.  Gwyn 

Norcross  v.  Widgery 

North  River  Bank  v.  Aymar 

Norton  v.  Gillison 

Norwood  V.  Norwood 

Nugent  V.  GifFard 


Oakey  v.  Carey 

Obert  V.  Obert 

O'Brien  v.  Elliot 

Oden  V.  Windley 

Odiorne  v.  Mason 

Oehler  v.  Walker] 

Ohio  Life  Ins.  Co.  v.  Ledyard, 


Ins.  Co.  V.  Ross 

Okill  V.  Whittaker 
Oldham  v.  Jones 

V.  Litchfield 

Oliver  v.  Bell 
V.  Piatt 


320 

647 

125 

462 

109 

712 

104,  110, 

113,  183 

83,  97,  188,  196 

703 

647 

718 

677,  679 

101,  169,  713 


O'Neil  r.  Donnell  469 

Ong  V.  Campbell  692 

Ormerod  v.  Hardman  690 

Orth  V.  Jennings  108,  110 

Osborn  v.  Carr  89 

V.  Phelps  688 

Osborne  v.  Duke  of  Leeds  551 
Osgood  V.  Franklin  696 
Otley  V.  M'Alpine's  Heirs  646 
Ovey  V.  Leighton  123 
Owings  v.  Mason  69 
V.  Myers  172 

Padgett  v.  Laurence  108 

Page,  Ex  parte  317 

V.  Page  712 

Paine  v.  Packard  282 

Painter  v.  Zane  104 
Fallen  v.  Agricultural  Bank    240,  279,  284 

Parker  v.  Blythmore  92 

V.  Gwynn  460 

V.  Jackson  183 

V.  Kane  184 

Parkhurst  v.  Van  Cortland     673,  684,  690, 

701,  710 

Parkist  v.  Alexander  1 78 

Parkman  v.  Welch  122,  241 

V.  Wilson  272 

Parks  V.  Jackson  165,174 

Parrish  v.  Koons  694,  710 

Parsons  v.  Briddock            -  .231 

V.  Jury  95 

V.  Winslow  413 

Partridge,  Adm'r,  v.  Partridge  586 

V.  Clark  677 

Paschall  v.  Halman  218 

Patrick  v.  Langston  124 

Patterson  v.  Martz  699 

Patton  V.  Moore  103.  117 

Patty  V.  Pease  239,  272 

Paxson  V.  Potts  270 

Paxton  V.  Harrier  240,  272 

Payne  v.  Matthews  321,  328 

V.  Sale  514 

Paynes  v.  Coles  125 

Paysant  v.  Ware  672 

Peabody  v.  Fenton  71,  154 

Peacock  v.  Burt  82,  165 

Peak  V.  Dorwin  231 

Pearce  v.  Taylor  181 

Pearson  v.  Daniel  158,  160 

Peckworth  V.  Butler  125 
Peebles  v.  Reading                   153,  156,  717 

Peet  V.  Beers  235 

Peirepoint  v.  Barnard  694 

Peirson  v.  Clayes  124 

Pell  V.  Ball  502 

Pembroke  v.  Allenstown  712 

Pendleton  V.  Batton  112 

V.  Fay  154,  160,  198 

Pennell's  Appeal  448 
Pennock  v.  Freeman  695 
Perkins  v.  Hays  714 
V.  Wright  695 


xlii 


TABLE     or     AMERICAN     CASES. 


Per  Lee  v.  Onderdonk  229 
Perry  v.  JIax\vell                       463,  501,  585 

Peters  v.  Goodrich  160 

Petrie  v.  Clark  104 

Petty  V.  Taylor  124 

Peyton  v.  Smith  462,  463 

Phelps  v.  Green  647 

V.  Osborn  702 

Philbrook  v.  Delano  716 

Philpot  V.  Elliott  680,  700 

Phillips  V.  Bank  of  Lewistown  85,  157 

V.  Bustard  47 1 

V.  Craniond  713,  714 

V.  Medbury  414 

V.  Thompson  469,  694 

Phyfe  V.  Warden  704,  708 

Piatt  V.  St.  Clair's  Heirs  281 

Pickering  v.  Busk  86 

Pickett  V.  Logon  714 

Pierce  v.  Jackson  315,  337 

Pierce's  Adm'r  v.  Trigg's  Heirs  714 

Pierson  v.  Ivey  183 

Pike  V.  Armstead  183 
Pillow's  Heirs  v.  Shannon's  Heirs    93,  101 

Pitcairn  v.  O^bourne  683 

Pitcher  v.  Livingston  172 

Pitney  v.  Leonard  154 

Pittiuger's  Adm'r  v.  Pittinger  698 

Plumb  V.  Fluitt  115,  152 

Plumer  v.  Robertson  167 

Podjnore  v.  Gunning  714 

Poillou  V.  Martin  81,  82 

Poindexter  v.  Gibson  463 

Pole  V.  Somers  592 

Polk  V.  Gallant  103,  110 

Pomeroy  v.  Stevens  189 

Pomfret  v.  Lord  Windsor  185 

Poor  V.  Woodburn  104 

Portmore  v.  Morris  673 

Porter  v.  Cole  183 

V.  Dougherty  699 

V.  Mayfield  717,  720 

Post  V.  Mackall  255,  280,  459 

Poston  V.  Eubank  247 

Pott  V.  Nathans  231 

Potter  V.  Stone  463 

Pratt  V.  Carroll  699 

V.  Hoag                 '  172 

Preist  V.  Rice  113 

Prentice  v.  Achorn  697 
Presbyterian  Corporation  v.  Wallace     240 

Prescott  V.  Heard  ]  1 1 

Preston  v.  Crowfoot  71 

V.  Tubin                            ^  176 

Prevost  V.  Gratz                             '  442 

Price  V.  Barnard                        '  329 

V.  Dyer  691 

V.  Jackson  338 

V.  M'Donald      154,  159,  1C2,  175,  194 

V.  North  2G8 

V.  White  175 

Pringle  v.  Dunkley  412 

Pritcliard  v.  Brown  712 

Powel  V.  Cleaver  598 


Powell 


Jeffries 
Powell 


Powell's  Case 

Pugh's  Heirs  r.  Bill's  Heirs 

Purdy  V.  Doyle 

Pusey  V.  Clemson 

Pye,  Ex  parte 

RafiFensberger  v.  Cullison 

Rafferty  v.  Clarke 

Raiford  v.  Raiford 

Railway  Company  v.  Winter 

Ramsay  v.  Bell 

V.  Westmoreland  Bank 


Ramsboltam  v.  Gosden 
Ramsey,  Assignees  of,  v.  Ellis 

V.  Ramsey 

Ramsey's  Appeal 
Randall  v.  Cochran 

V.  Phillips 

V.  Russell 

V.  Silverthorn 

Raney  v.  Heath 
Rankin  v.  Jones        316 
Rapalje  v.  Norsworthy's  Ex'rs 
Ratcliff  V.  Wilson 
Ratcliffe  v.  Alison 
Rathbun  v.  Rathbun 
Rathburn  v.  Colton 
Raybold  v.  Raybold 
Raynor  v.  Wilson 
Reading  v.  Weston 
Rearich  v.  Swinehart 
Reddick  v.  Jones 
Redfearn  v.  Ferrier 
Reech  v.  Kennegal 
Reed  v.  Dickey 

V.  Moore 

V.  Sheppardson 

V.  Smith 

Reed's  Heirs  v.  Hornback 
Rees  V.  Berrington 
Reese  v.  Bradford 
Reeve  v.  Strawn 
Reigle  v.  Leiter 
Renshaw  v.  Gans 
Renton  v.  Chaplin 
Reynolds  v.  Reynolds 

V.  Tooker 

V.  Wall 

V.  Waller 


107 
469 
589 
183 
220,  311 
444,  448 
595 

689,  691,  708 
269 
464 
673 
647 
275 
694 
466 
471 

105,  219,  277 

232 

125,  676 

533 

166,  192 

532 


688, 


324,  330,  332, 


104, 


Rice  V.  Barnard 
Rich  V.  Jackson 
Riciiards  v.  Humphreys 
Richardson  v.  Greese 

v.  Thompson 


v.  The  Washington  Bank 


Richetts  v.  Livingston 
Richson  v.  Richson 
Rider  v.  Wager 
Ridgely  v.  Carey 

V.  Gittings 

Ridges  V.  Morrison 
Ridgway  v.  Bowman 


334 
439 
689 
674 
716 
455 
443 
181 
704 
678 
107 

84 
708 

96 

672 

336,  338 

71 
710 
226 
329,  331,  334 
712 
276,  280 
678 
336 
265,  270 
221 
697 
698 
327,  334 
687 
596 
589 
677 
230 
591 
106 
506 
321 
459 
551 
672 


674 


254, 


TABLE     OF     AMERICAN     CASES. 


xllii 


Ring  V.  Franklin 
Ringgold  V.  Bryan 

V.  Ringgold 

—  V.  AVaggoner 


Ripple  V.  Ripple 
Roach  V.  Cosine 
Robards  v.  Wortham 
Robb  V.  Stevens 
Roberts,  Matter  of 

V.  Anderson 

V.  Bourne 

T.  Salisbury 

V.  Stanton 

V.  Weatberford 


Robeson  v.  Harwell 
Robinson  v.  Eldridge 

■ V.  Leavitt 

V.  The  Bank 

V.  Whitely 

Robson  V.  Harwell 

Rockingham  M.  Ins.  Co.  v.  Bosher 


677 

160,  165 

458 

160 

156,  158,  267 

676 

255,  256 

321 

437 

71 

181 

124, 126 
87,  157 
593 
674 
678 
230 
305 
595 

679,  715 
232 


Rodgers  v.  Meranda 

321 

323 

Rogers  t.  Atkinson 

684 

V.  Colt 

672 

V.  Gibson 

108 

V.  Hall 

126 

V.  Hoskins 

157 

V.  Jones 

113,  152 

157 

165 

V.  Rogers 

250 

258 

V.  Ross 

714 

V.  Saunders 

695 

T.  Searl 

92 

V.  Willy 

159 

Ronnell  v.  Barnett 

595 

Root  V.  Blake 

711 

V.  French 

107 

Rosa  v.  Brotherton 

107 

V.  Barclay 

306 

v.  Horton 

164 

V.  Wilson 

680 

Row  V.  Dawson 

85 

Rowan  v.  Adams 

107 

157 

Rowley  v.  Bigelow 

71 

Royer's  Appeal 

445 

Ruft'  V.  Executors  of  Summers 

464 

Ruffin,  Ex  parte  327,329, 

330,332 

,334 

339 

Rupert  V.  Mark 

121, 

166 

194 

V.  Marsh 

183 

Russ  T.  Fay 

338 

Russell  V.  Haddock 

104 

■rr       tTrtnfrt*. 

275 

V.  Patrie 

160 

Ruston's  Ex'rs  v.  Ruston 

250, 

254, 

261 

Rutgers  v.  Kingsland 

69 

Rutledge  v.  Hazlehurst 

286, 

312 

Sage  V.  Chollar 

327, 

329, 

334 

Sagitarj"  v.  Hyde 

219 

Sailor  v.  Hertzog 

165, 

168 

Salmon  v.  Claggett 

123, 

125 

Sanderson  v.  Stockdale 

329, 

330, 

334 

Sarter  v.  Gordon 

696 

Satterwhite  v.  Littlefield 

470 

Saunders  v.  Dehew 

90 

Say  V.  Barnes  443,  451 

Schaw  V.  Schaw  462 

Schenck's  Appeal  277 

Schmidt  v.  Gatewood  706 

V.  Labutut  681 

V.  Livingston  698 

Schroepel  V.  Shaw  275 

Schryver  v.  Teller  241 
Schutt  V.  Large                   69,  178,  182,  184 

Scoby  v.  Blanchard  712 

Scott  V.  Dorsey  458 

V.  Gallagher  166,  191,  197 

V.  Tyler  414 

Scott's  Appeal  446 

Estate  444 

Scribner  v.  Lockwood  110 

Scroggins  v.  Dougal  165 

Scudder  v.  Crocker  455 

V.  Van  Amburgh  173 

Seaman  v.  Cook  713 

V.  Rennsellaer  700 

Sedam  v.  Williams  335 

Seecrest  v.  M'Kenna  699 

Seilzinger  v.  Ridgway  710 

Seldwood  v.  Mildmay  598 

Sellers  v.  Ashford  463 

Semple  r.  Burd  109 
Sergeant  v.  Ingersoll                           96,  161 

Seton  V.  Slade  693 
Seymour  v.  Delancey                        695,  698 

Shallcross  v.  Finden  268 

Shannon  v.  Marselis  241 

Shaw  V.  Poor  178 
Shedd  V.  Wilson  315,  335,  337 
Shelby  v.  The  Commonwealth  511,  514 
Shelton  v.  Johnson                            173,  175 

Shenck's  Appeal  285 

Shepherd  v.  Adams  241 

V.  Bevin  696 

V.  Lutwidge,  309 

Sheppard  v.  Starke  461 

Sherill  v.  Shuford  464 

Shields  v.  Trammell  708 

Shipp  V.  Swann 

Shirley  v.  Shattuck 

Shirras  v.  Craig 

Showman  v.  Miller 

Shreve  v.  Shreve 

Shryock  v.  Wagoner 

Shults  V.  Moore 

Shunk's  Appeal 

Estate 


250, 


Shurtleff"  v.  Witherspoon 
Sibley  v.  Perry 
Siegel  V.  Chidsey 
Sigourney  v.  Mann 
Silk  V.  Prime 
Simmons  v.  Hill 
Simms  v.  Richardson 
Sims  V.  M'Ewen 

V.  Sims 

Singizer's  Appeal 

Sir  William  Harbert's  Case 

Siter  V.  M'Clanachan 


684 

436,  470 

96 

681 

263,  511 
108 
179 
312 
449 
470 
513 
332 

160,  169 
259 
695 
101 

694,  699 

265,  590,  593,  600 

317 

238 

89,  178,  191 


xliv 


TABLE     OF     AMERICAN     CASES. 


Skeel  V.  Spraker 

239 

Skinner  v.  Starner 

242 

V.  White 

125 

Skipp  V.  Ilarwood 

327, 

338 

Slauney  v.  Style 

532 

Slaughter  v.  Tindale 

699 

Slee  V.  Manhattan  Company 

676 

Slevin  v.  Morrow 

275 

Slocum  V.  Marshall 

715 

Smith,  In  the  Matter  of 

315 

336 

V.  Barham 

532 

V.  Brush 

124 

V.  Daniel 

183 

V.  Fitzgerald 

513 

V.  Greeley 

684,  '702 

704 

V.  Hiscock 

107 

V.  LamptoQ 

500 

V.  Lurch 

109 

-    V.  Mallory 

321 

326 

. V.  Marshall 

586 

. V.  Scott 

232 

V.  Smith 

648 

-    V.  The  Columbia  Ins. 

Co. 

233 

-    V.  Williams 

672 

Smitheal  v.  Gray 

120 

Smith's  Heirs  v.  The  Bank 

101 

,  106 

112, 


Snelgrove  v.  Snelgrove   72,91,96,  120, 123 
Snodgrass'  Appeal     329,  332, 334,  336,  338 
Snow  V.  Collum 
Snyder  v.  May 

V.  Sponable 

Soles  V.  Hichman 
Solliday  v.  Bisset 
Solms  V.  M'CuUough 
Somes  V.  Brewer 

V.  Skinner 

Sousa  V.  De  Mej'er 
Spafford  V.  Weston 
Spangler's  Appeal 
Sparhawk  v.  Russell 
Spear  v.  Tinkam 
Speed's  Ex'r  v.  Nelson's  Ex'r 
Speight  V.  Speight 
Spence  v.  Whitaker 
Spencer  v.  Higgins 
V.  Spencer 


464 
680 
164 
710 
452 
184 
71 
672 
123 
189 
452 
326 
532 
310 
124 
469 
500,  502,  509 
442 


Sperry's  Estate         307,  316,  318,  323,  326 
Spraker  v.  Van  Alstyne  255,  '"' 

Spurhill  V.  Cannon 
Spurrier  v.  Fitzgerald 
Squire  v.  Herder 
Stafford  v.  Ballou 

V.  Bryan 

Stagg  V.  Beekraan  , 

Stalker  v.  M'Donald 

Stansell  v.  Roberts 

Stanley  v.  Perley  109 

V.  Potter 

V.  Roberts 

State  of  Connecticut  v.  Bradish 
State  Bank  v.  Marsh 
State  V.  Paup 

V.  Plait  and  Rogers 

V.  Warrington 


504 
463 
695 
716 
160 
124 
591 
107 
186 
113 
506 
113 
180 
456 
681 
457 
534 


Stead  V.  Dawber 

Stearns  v.  Hall 

Steele  v.  The  Franklin  Insurance  Co 

Steel  V.  Stamps 

Steere  v.  Steere 

Stevens  v.  Cooper 

Stehman's  Appeal 

Stephenson  v.  Heyward 

V.  Heathcote 

V.  Stephenson 

V.  Thompson 

V.  Yandle 

Stephenson's  Estate 
Sterling  v.  Brightbill 
Sterrett's  Appeal 
Stevens  v.  Cooper 


V.  Goodenough 

V.  Gregg 

V.  Grigg 

V.  Judson 

Stevenson  v.  Black 

v.  Maxwell 

V.  Phillips 

Stevenson's  Estate 
Stewart  v.  Lispenard 

V.  Small 

Stickney  v.  Davis 
Stires  v.  Stires 
St.  John  V.  Benedict 
Stockett  V.  Taylor 
Stoddert  v.  Tuck 
Stone  V.  Hall 
Stoney  v.  Schultz 
Story  V.  Lord  Windsor 
Stout  V.  Hart 

Stoutenburgh  v.  Tompkins 
Streator  v.  Jones 
Strickland  v.  Aldridge 
Strohm's  Appeal 
Strong  V.  Baker 

V.  Smith 

V.  Stewart 

Y.  Williams 

Stroud  V.  Lockhart 
Stryker  v.  Vanderbilt 
Stuart  V.  Carson 
Stuart's  Heirs  v.  Coulter 
Sullivan  v.  Bates 
Sumner  v.  Rhodes 
Stuyvesant  v.  Hall 


690 
691 
232 
710 
712 
709 
443 
106 
591 
471 
712 
471 
449 
224 
445 
246,  271,  670,  674, 
691,  693 
160 
250,  265 
270 
671 
242 
438 
457 
451 
698 
107 
500 
262 
695 
160 
710 
680 
241 
91 
500,  508,  509 
690,  695 
676 


708 
266 
121 

179 
676 

586 
184 

672 

258 
624,  648 
124,  126 
179 
174,  181,  240 
V.  Hone  174,  181,  240,  272 

Susquehanna  Insurance  Company  v. 

Perrine  684 

Sussex  Ins.  Co.  v.  Woodruff  233 

Swan  V.  Ligan  103 

Swarthout  v.  Curtis  160 

Swartswalter's  Accounts  443,  446 

Sweet  V.  Jacocks  708,  714 

Svvick  V.  Sears  672 

Swift  V.  Edson  270 

V.  Tyson  107 

Swoope's  xVppeal  267 

Sydney  v.  Roberts  71 


TABLE     OF     AMERICAN     CASES. 


xlv 


Talmadge  v.  Burlingame 

231 

Talman  v.  Franklin 

710 

Taliaferro  v.  Minor 

460 

Tavaux  v.  Ball 

467 

Tappan  v.  Blaisdale 

315, 

337 

Taylor  v.  Bates 

81 

V.  Eckford 

113 

—  V.  Fields 

332 

336 

-  v.  Gett 

81 

—  V.  Gilman 

679 

V.  King 

671 

601 

T.  Luther 

676, 

704 

706 

V.  Maris's  Ex'rs 

181, 

240 

271 

273 

V.  Mason 

416 

Taylor's  Estate,  In  re 

264 

Teaf  V.  Ross 

275 

Tenant  v.  Stoney 

305 

Ten  Eyck  v.  Simpson 

184 

Thelluson  v.  Woodford 

595 

Thomas  v.  Croft 

229 

V.  Frederick  Co 

.  School 

459 

V.  Gibson 

120 

V.  M'Cormack 

674 

677 

680 

716 

Thompson  v.  Brown 

310 

V.  Hardman 

648 

V.  M'Donald 

462 

V.  Murray 

237, 

241, 

243, 
279 

276, 
284 

V.  Palmer 

V.  Patton 

. V.  Thompson 

V.  Tod 

Thomson  v.  White 
Thoroughgood's  Case 
Thynn  v.  Thynn 
Tift  V.  Porter 

Tillinghast  v.  Champlin  154, 157, 160,  315, 

337,  339 


466 
676 
264 
694 
678 
670 
708,  718 
500,  503 


Tillman  v.  Cowand 

178 

Tilton  V.  Hunter 

181 

V.  Tilton 

700 

Tinsly  v.  Oliver 

218 

Toby  V.  Bristol 

695 

Tolland  v.  Standbridge 

153 

Tolson  V.  Tolson 

692 

Tompkins  v.  Anthon 

94, 

120, 

122 

69 

_.    y  Ward 

120 

193 

125 

Tongue  v.  Morton 

172 

Torrs  Estate 

218, 

264, 

307 

Terry  v.  Buck 

685 

695 

Towle  V.  Mack 

454 

Towner  v.  Lucas              670, 

674, 

689 

706 

Townshend  v.  Stangroom 

673 

709 

V.  Weld 

672 

Tracy  v.  Tracy 

Trapnall  t.  Brown 

Trefts  V.  King 

Trenton  M.  Life  Ins.  Co.  t.  Johnson 

Trevanian  v.  Morse 

Trimble  v.  Boothby 

Trimmer  v.  Bayne  219, 

Triplett's  Executors  v.  Jameson 


269 
708 
157 
235 
91 
175 
595 
460 


Troulp  V.  Hurlburt 
Trowbridge  v.  Cushman 
Trull  V.  Bigelow 
Truluck  V.  Peeples 
Tuckers  v.  Oxley 
Tufnel  V.  Constable 
Turnage  v.  Green 
Turner  v.  Crebill 

V.  Turner's  Administrator 

Tuttle  V.  Jackson  165, 

■  T.  Robinson 


Twelves  v.  Williams 
Tyson  v.  Passmore 


194 
337 
69,  184 
184 
315 
591 
462 
175 
462 

183,  193 
453 
104 

680,  700 


Uhler  V.  Hutchinson  112 

Uhrich  v.  Beck  116,  119 

Underwood  v.  Lord  Courtown  177 

United  States  v.  Hack  315 

Insurance  Company  v. 

Shriver  97,  164,  188 

Upshaw  V.  Hargrove  103 

Urkett  V.  Coryell  169 

Valentine  v.  Valentine  439,  441 

Vance  v.  Campbell's  Heirs  412 

V.  Gary  466 

Vanderheyden  v.  Vanderheyden  439 

Van  Alstyne  v.  Spracker  257 

Van  Buren  v.  Olmsted  676 

Van  Heusen   v.  Radclifif  105,108 

Van  Meter  v.  M'Faddin  183 

Van  Valen  v.  Russell  330 
Van  Rennsellaer  v.  Clark  180, 182, 184, 186 

Van  Rennselaer  v.  Stafford  81 

Van  Riper  v.  Van  Riper  586 

Van  Winkle  v.  Van  Houten  267,  270 

Varick  v.  Briggs  69 
Vattier  v.  Hinde              69,  94,  96,  101,  120 

V.  Hude  116 

Vaugermain,  Heirs  of  551 

Vaughn  v.  Tracy  195,  197 

Vaux  V.  Caldwell  704 

Veazie  v.  Parker  168,  181 

Vestry  and  Wardens  v.  Barksdale  467 
Viele  V.  Troy  and  Boston  Railroad          696 

Villard  v.  Robert  179,  465 

Vorhees  v.  De  Meyer  698 

v.-Stoothorf  456 

Vrooman  v.  Phelps  671 


Waddy  v.  Hawkins 
Wagstaffe  v.  Lowerre 
Wailes  v.  Cooper 
Wainwright  v.  Bendlowes 
Wakeman  v.  Grover 
Waldo  v.  Russell 
Walker  v.  Butz 

V.  Eyth 

V.  Geisse 

V.  Gilbert 


Walker's  Estate 
Wallace  v.  Brown 

V.  Craps 

V.  Duffield 


113,  121,  178, 
252,  256, 


460 

437 

169 

255 

125,  328 

110 

172 

317 

103 

194,  196 

449,  504 

695 

189 

713 


xlvi 


TABLE     OF     AMERICAN     CASES. 


Wallace  v.  Wallace 
Wallace's  Appeal 
Walling  V.  Aiken 
Wallop  V.  Hewitt 
Walls  V.  Stewart 
Walton  T.  Avery 
V.  Walton 


462, 


68,  91, 


Walwyn  v.  Lee 
Wankford  v.  Wankford 
Warbass  v.  Armstrong 
Warburton  v.  Lauman 
Ward  V.  Coffield 

V.  Lont 

Wardell  v.  Wadsworth 
Ware  v.  Egmont 
Waring  v.  Darnell 
Warley  v.  Warley 
Warner  v.  Winslow 
Warnock  v.  Wightmau 
Warren  v.  Baynes 

V.  Scott 

V.  Wigfall 

Washington's  Lessee  v. 
Washburn  v.BankofBellows' Falls  306,315, 

327,  337 

V.  Merrills  683 

Waterman  v.  Hunt  329 

Waters  v.  Taylor  337 

V.  Tazewell  415 

Watkins  v.  Hatchet  120 

V.  Stocket  124,  681 

V.  Wassell  108 

Watson  y.  Alcock  275 

V.  Bane  219 

V.  Le  Roy  67 

• V.  Lord  Lincoln  595 


206,  269,  501 
237 
699 
551 
512 
463 
504 
120 
306 
456 
184 

585,  590 
595 
178 

158,  163 
459 
252,  255,  257,  258 
116 
183 
650 

161,  184 

502 

Trousdale  112 


. V.  Wells 

V.  Wilson 

Webb  V.  Jones 

V.  Webb 

Webber  v.  Taylor 
Webster  v.  Harris 
V.  Maddox 


164 
176 
255 
471 
165 
684 
165,  166,  194 
513 
453 
684 

285,  313 
458 

673,  687 
535 

160,  103 


Welch's  Appeal 
Wendell  v.  French 
Wesley  v.  Thomas 
West  V.  Bank  of  Rutland 

V.  Smith 

Westbrook  v.  Harbeson 
Westcott  V.  Cady 
Westervelt  v.  Half 
Western    Railroad    Corporation 

Babcock  095 

Whallcy  v.  Whalley  ^  81 

Wham  V.  Love  '  465 

Wheaton  v.  Dyer  183 

V.  Wheaton  681 

Wheelan  v.  Wheelan  696 

Whitchurch  v.  Bevis  704 

White  V.  Bcattie  501 

V.  Brown  233 

V.  Bullock  441 

V.  Carpenter  170,  174 

V.  Denman  108,  109,  113,  187 


White  V.  Dobinson 

V.  Dougherty 

V.  Green 

V.  Thompson 


232 
316 
511 
696 


V.  Union  Insurance  Company      315 


V.  Winchester 

WhiteViread  v.  Jordan 
Whitted  V.  Webb 
Whiting  V.  Beebe 
Whittick  V.  Kaine 
Wickham  v.  Martin 
Wikoffv.  Davis 
Wilcox  V.  Smith 

V.  Wain 

Wilder  v.  Keeler 

Wildes  V.  Chapman 
Wildgoose  v.  Wayland 
Wilkes  v.  Harper 

V.  Harris 

Wilkin  V.  Wilkin 
Wilkinson  v.  Henderson 


500,  503,  507,  510 

154,  159 

463 

172 

69,  193 

106 

243 

441 

185 

220,  306,  311.  314, 

318, 323 

335 

153,  155 

109 

235 

64T 

319 


Willan  V.  Willan 
William  v.  Mosher 
Williams,  Ex  parte 


V.  Wilkinson    674,  715,  717,  719 


Conrad 
V.  Crary 

V.  Hollingsworth 
V.  James 
V.  Killingsworth 
V.  Lambe 


680,  685,  702 
458 
329 
704 
590 
713 
228 
116 
92 


108, 


586. 

iio! 


Williamson  v.  Brown       153,  165,  168,  195 


V.  Gordon's  Executors 


V.  Williamson 

Willink  V.  Vanderveer 
Willis  V.  Forney 

v.  Henderson 

Willoughby  v.  Willoughby 

Willox  V.  Rhodes 
Wilmot  V.  Pike 
Wilson  V.  Hilyer 

V.  M'Cullough 

=■ —  V.  Soper 

V.  Wilson 

V.  Watts 

V.  Wright 


531, 


Wiltshire  v.  Rabbits 

Wilty  V.  Hightower 

Winborn  v.  Gorrell 

Winch  V.  Winchester 

Winchester  v.  The  Baltimore  Railroad 

V.  Paine 

Winn's  Adm'r  v.  Weir 
Winter  v.  Diffenderffer 
Wise  V.  Shepherd 
Wisely  v.  Findlay 
Wiseman  v.  Westland 
Wisham  v.  Lippincott 
Wiswall  V.  Hail 
Withers  v.  Carter 
Witherspoon,  Ex  parte 
Witman  v.  Norton 


88 

535 

■  712 

710 

104 

67,  87,  89, 

91,  100 

513 

163 

121 

153,  161,  164 

315,  330,  332 

442 

674,  679,  706,  708 

228 

163 

165 

103,  158,  175 

085,  089,  090 

164 

176 

601 

459 

221 

646 

177 

317,  319,  324 

702 

221 

464,  465 

269 


TABLE     OF  AMERICAN     CASES. 


xlvii 


Witman's  Appeal 
Witter  V.  Richards 
Woffington  V.  Stone 
Wolbert  v.  Lucas 
Wood  V.  Chapin 

V.  Dwarris 

v.  Eame's  Creditors 

V.  Farmere 

V.  Garnett 

V.  The  Bank  of  Rutland 

V.  Lee 

T.  Little 

V.  Mann 

V.  Marvin 

Woodcock  V.  Bennett 
Wooden  v.  Haviland 
Woodrop  V.  Ward 
Woodruff  V.  Cook 
Woods  V.  Bank  of  Kentucky 

V.  Sullivan 

Woodworth  v.  Guzman 
Woolcocks  V.  Hart 
Work  V.  Harper 
Workman  v.  Guthrie 


Wormley  v.  Lowrj 
V.  Wormley 


443 
338 

226 
244 
126 
679 
454 
157,  165,  166 
461 
278 
G89 
648 
117 
71 
699 
702 
321 
120 
119 
533 
184 
279 
179 
689,  691,  700, 
708 
107 
90,  116,  122,  182 


337, 


111, 


471, 
646, 
116, 


680,  684, 


69, 


531, 


Wotten  v.  Copeland 

V.  Burch 

Wride  v.  Clark 
Wright  v.  Atkinson 

V.  Bates 

V.  Nutt 

V.  Simpson 


647 
531,  534 

263 
241,  280 

676 

279,  281 

226,  281,  283 


V.  Trustees  of  Methodist  Epis- 
copal Church  265 
V.Ward  153 
V.  Wood  120,  166,  168 
V.  Wright                               466,  468 


Wyatt  V.  Harwell 
V.  Elam 


Wyche  v.  Macklin 
Wyse  V.  Smith 
Wythe  v.  Henniker 

Yarborough  v.  Newell 
Youst  V.  Martin 
Young,  Ex  parte 

V.  Jacoway 

V.  Paul 

Zeigler  v.  Eckert 

V.  Long 

Zeiter  v.  Zeiter 


173,  188,  190 
194 
671 
250 
261 

676 
102,  116,  118 

458 
672 
700 

590 
221 
694 


LEADING  CASES  IN  EQUITY. 


BONA   FIDE   PURCHASERS. 

BASSET  V.  NOSWORTHY. 

TERM  HIL.  25  CAR.  2,  ANNO  1673. 
REPORTED    REP.    TEMP.    PINCH,    102. 

Purchase  for  valuable  Consideration  without  Notice. — A  hill  was 
filed  hi/  an  lieir-at-law  against  a  person  claiming  as  purchaser  from  the 
devisee  tinder  the  will  of  his  ancestor  to  discover  a  revocation  of  the  ivill. 
The  defendant  pleaded,  that  he  was  a  purchaser  for  valuahle  consideration, 
hona  fide,  without  notice  of  any  revocation,  and  the  plea  was  allowed,  and, 
upon  proof  of  it,  the  hill  was  dismissed. 

Though  lands  hy  the  falling  in  of  several  lives  prove  to  he  of  much  greater 
value  than  they  were  at  the  time  of  the  purchase,  if  the  consideration  he  such 
as  will  make  the  defendant  a  purchaser  within  the  stat.  27  Eliz.,  he  will  he 
considered  as  a  purchaser  for  valuahle  consideration  ;  for  the  question  is, 
not  whether  the  consideration  he  adequate,  hut  whether  it  he  valuahle. 

The  plaintiff,  Sir  William  Basset,  entitled  himself,  as  son  and  lieir  of  Eliza- 
beth Seymour,  who  was  the  only  daughter  and  heir  of  Sir  Joseph  Killegrew, 
who  was  brother  and  heir  of  Sir  Henry  Killegrew,  whose  estate  the  lands  in 
the  bill  mentioned  formerly  were;  the  defendant's  title  being  under  (as  the 
plaintiff  alleged)  a  pretended  purchase  of  these  lands  at  Drury  House,  and 
under  the  will  of  Sir  Henry  Killegrew,  the  purchase  being  from  Jane  Davis, 
(afterwards  the  wife  of  Mr.  Berkley,)  and  from  '^Henry  Hill,  the  pre- 
tended natural  son  of  the  said  Sir  Henry  Killegrew,  of  which  will  the  •-  ^ 
plaintiff  alleged  there  was  a  revocation  by  some  subsequent  deed  or  will ;  and 
for  a  discovery  thereof,  and  what  Mr.  Nosworthy  really  paid  for  the  purchase, 
and  what  deeds  and  writings  he  had,  and  to  set  aside  the  incumbrances  which 
he  had  bought  to  protect  his  purchase,  and  that  Mrs.  Seymour  might  try  her 
title  at  law,  upon  the  supposed  revocation  against  the  title  of  the  defendant, 
as  a  purchaser  under  the  said  will,  the  now  plaintiffs  exhibited  this  bill.^ 

1  A  bill  of  revivor. 
VOL.  II. 4 


50  BONA     FIDE     PURCHASERS. 

To  which  the  defendant  pleaded  a  dismission  of  a  bill  in  the  Court  of  Ex- 
chequer/ signed  and  enrolled,  which  bill  was  there  brought  for  the  same  mat- 
ter as  in  this  bill,  and  fully  examined  and  dismissed  upon  a  full  hearing,  but 
without  prejudice,  and  the  dismission  duly  signed  and  enrolled. 

The  defendant  further  pleaded,  that  he  loas  a  'purclmser  for  a  valuable  con- 
sideration, bona  fide  j)u  id,  without  notice  of  any  revocation. 

This  cause  being  heard  by  the  Lord  Keeper  Bridgman,  he  ordered  prece- 
dents to  be  searched,  where  a  plaintiff,  after  a  dismission  of  his  bill  on  a  judi- 
cial and  formal  hearing,  and  a  full  examination  of  witnesses  in  one  court  of 
equity,  and  that  without  prejudice,  had  ever  been  admitted  in  another  court 
of  equity,  to  examine  new  witnesses  to  the  same  matter  formerly  in  issue  and 
examined.^ 

Afterwards  there  being  several  orders  made  in  this  cause,  and  one  by  which 
the  plea  was  overruled,*  the  cause  now  came  on  to  be  heard. 

Lord  Keeper  Finch,^  having  read  the  articles  for  the  defendant's  pur- 
chase, and  the  conveyances,  leases,  fine,  and  recovery,  which  appeared  to  be 
made  before  any  purchase,  at  Drury  House,  and  having  considered  the  whole 
matter,  was  of  opinion  that  the  Court  had  gone  much  out  of  the  way,  and  that 
the  cause  had  been  perplexed  with  several  extraordinary  orders  and  not  ac- 
cordins:  to  the  usual  course  of  proceedinp-s ;  and  therefore  it  *was  to  be 
L      -I  brought  back  to  that  state  where  it  first  went  wrong. 

Whereupon  he  discharged  all  former  orders  for  examining  witnesses  at  large, 
and  confined^  all  examinations  to  the  matter  of  the  defendant's  plea,  which,  by 
the  justice  of  a  court  of  equity,  ought  to  conclude  the  plaintiff",  unless  he  could 
disprove  it.  And  a  bill  of  the  same  nature  having  been  brought  in  the  Court 
of  Exchequer,  and  there,  after  full  examination,  dismissed,  it  seemed  very 
hard  that  the  dismission  was  without  prejudice,  because  no  ci'oss  bill  can  or 
ought  to  be  received  after  publication,  to  examine  the  same  witnesses  again  ; 
for  that  might  be  a  means  to  introduce  subornation  and  perjury,  even  by  the 
order  of  this  Court,  and  no  precedents  can  be  found  to  warrant  such  practice. 

Therefore  the  defendant  having  pleaded  this  dismission  in  bar  of  any  fur- 
ther examination,  and  that  he  is  a  purchaser  lona  fide,  tcithout  notice  of  any 
revocation,  and  afterwards  for  the  Court  to  save  the  benefit  of  this  plea,  by 
way  of  answer,  and  yet  to  allow  an  examination  to  the  whole  matter  which 

1  See  Seymour  v.  Noswortby,  Hard.  374,  upon  an  issue  directed  by  tlie  Court  of 
Exchequer,  whether  the  will  of  Sir  Henry  Killegrew  was  revoked  or  not:  Minch.  16 
Car.  2. 

'^  Seymour  v.  Nosworthy,  before  Lord  Keeper  Bridgman  and  Justice  Moreton,  1  Ch. 
Ca.  155,  where,  however,  the  name  of  the  case  is  omitted,  and  the  cause  is  said  to  have 
been  on  demurrer;  whereas  it  appears  from  other  parts  of  the  report  to  have  been  on  a 
plea. 

'Seymour  v.  Nosworthy,  Mich.  Hil.  1669;  3  Ch.  Rep.  40 ;  Nels.  135;  Freera.  Ch. 
Rep.  128;  2  Eq.  Ca.  Ab.  60. 

*  Afterwards  Lord  Chancellor  and  Earl  of  Nottingham. 

*  "  Confirmed,"  evidently  by  mistake  in  the  report. 


BASSET     V.     NOSWORTHY.  51 

had  been  pleaded  in  bar  to  sucb  examination,  (all  wbicb  bad  formerly  been 
done  in  tbis  cause,)  was  in  eifect  to  surprise  tbe  defendant,  and,  unawares,  to 
draw  bim  off  from  tbat  wbicb  was  bis  most  material  defence. 

Tbe  cause  being  tben  set  rigbt  before  tbe  Court  upon  tbe  true  merits  tbereof, 
tbere  were  only  two  points  wbicb  were  considerable  : 

1st,  Wbat  tbe  law  of  tbis  Court  is  concerning  purcbasers. 

2nd,  Wbetber  tbe  defendant  was  a  purcbaser  witbin  tbat  law. 

As  to  tbe  first  point,  a  purcbaser  bona  fide,  witbout  notice  of  any  defect  in 
his  title  at  tbe  time  of  tbe  purchase  made,  may  lawfully  buy  in  a  statute  or 
mortgage,  or  any  other  incumbrance;  and,  if  he  can  defend  himself  at  law 
by  any  such  incumbrances  bought  in,  his  adversary  shall  never  be  aided  in  a 
court  of  equity  by  setting  aside  such  incumbrances;  for  equity  will  not  disarm 
a  *purcbaser,  but  assist  bim.  And  precedents  of  tbis  nature  are  very 
ancient  and  numerous,  viz.,  where  the  Court  hath  refused  to  give  any  L  J 
assistance  against  a  purchaser,  either  to  an  heir,  or  to  a  widow,  or  to  the  father- 
less, or  to  creditors,  or  even  to  one  purcbaser  against  another. 

And  tbis  rule,  in  a  court  of  equity,  is  agreeable  to  tbe  wisdom  of  tbe  com- 
mon law,  where  tbe  maxims  wbicb  refer  to  descents,  discontinuances,  non- 
claims,  and  to  collateral  warranties,  are  only  tbe  wise  arts  and  intentions  of 
the  law  to  protect  the  possession,  and  to  strengthen  the  rights  of  purcbasers. 

As  to  the  second  point,  tbe  Court  declared,  that  tbe  defendant  bad  suffi- 
ciently proved  bis  plea,  and  himself  to  be  a  purcbaser  within  tbe  protection  of 
tbis  Court,  because  no  fraud  or  circumvention  appeared;  and  it  was  evident 
that  the  defendant  bad  paid  several  great  sums  to  discharge  statutes  which 
incumbered  those  lands,  over  and  above  what  was  paid  to  Mrs.  Jane  Berkley 
for  her  estate  for  life  and  to  Henry  Hill  for  bis  reversion ;  and  though  tbe 
lands  were  proved  to  be  of  much  greater  value  at  this  time,  by  the  falling  of 
several  lives,  than  what  they  were  at  the  time  of  the  purchase,  yet  tbat  will 
not  alter  tbe  case  in  equity ;  because  in  purchases  the  question  is  not,  whether 
the  consideration  he  adequate,  hut  whether  it  he  valuable  :^  for  if  it  he  such  a 
consideration  as  will  make  the  defendant  a  purchaser  within  the  statute  21 
Eliz.,^  and  bring  him  within  the  protection  of  that  law,  he  ought  not  to  be  im- 
peached in  equity. 

And  since  Henry  Hill  bad  nothing  to  subsist  on  during  his  minority  but 
this  reversion,  and  being  a  bastard,  could  have  no  kindred  by  tbe  law,  and 
probably  but  few  friends,  tbere  was  some  hazard  of  tbe  money  which  was  ad- 
vanced during  bis  minority,  if  be  died  before  tbe  fine  and  recovery  suffered. 

Tberefore,  tbe  Court  allowed  tbe  plea  and  dismissed  the  bill,  and  suppressed 
all  tbe  depositions  taken  in  this  cause  before  April  last,  and  all  since,  but  only 
sucb  wbicb  relate  to  tbis  plea  of  tbis  defendant.^ 


1  See  Copis  v.  Middleton,  2  Mad.  410,  432. 
"^  In  the  report  bj  mistake  cited  as  21  Eliz. 

'  Proceedings  were  afterwards  taken  at  law  in  this  long-contested  case.     See  Hitchins 
v.  Basset,  3  Mod.  203;  4  Jac.  2;  B.  R.    1G88;  Salk.  5S2  ;  Trin.   5  ;  W.  &  M.  B.  R.,  1 


BONA     FIDE     PURCHASERS. 


P^.-|  *Iu  tlae  principal  case,  Lord  Nottingham  acted  upon  the  well-known 
rule,  that  equity  will  give  no  assistance  against  a  bona  tide  purchaser  with- 
out notice  of  an  adverse  title,  and  his  statement  of  the  law  of  the  Court  upon 
the  subject  is  both  succinct  and  accurate.  Lord  Rosslyn,  C,  thus  comments  on 
and  adopts  it:  "  In  Basset  v.  Nos  war  thi/,  (Ca.  t.  Finch.  102,)  which  produced 
many  points,  the  plaintiff  took  up  the  cause  as  heir  of  Lady  Seymour,  claiming 
under  a  legal  title ;  the  defendants  set  up  a  purchase  for  valuable  consideration 
without  notice ;  Lord  Bridgman  had  overruled  the  plea,  in  consequence  of 
which  a  great  variety  of  proceedings  took  place  in  this  Court.  It  came  before 
Lord  Nottingham.  He  reversed  Lord  Bridgman's  order,  and  suppressed  all 
the  proceedings  that  took  place  in  consequence  of  the  production  and  discovery. 
The  book  does  not  state  it  amiss.  '  A  purchaser  bona  fide,  without  notice  of 
any  defect  in  his  title  at  the  time  he  made  the  purchase,  may  buy  in  a  statute, 
or  mortgage,  or  any  other  incumbrance;  and  if  he  can  defend  himself  at  law  by 
any  such  incumbrance  bought  in,  his  adversary  shall  never  be  aided  in  a  court  of 
equity  for  setting  aside  such  incumbrance,  for  equity  will  not  disarm  a  pur- 
chaser, hut  assist  him;  and  precedents  of  this  nature  are  very  ancient  and 
numerous ;  viz.,  where  the  Court  hath  refused  to  give  any  assistance  against 
a  purchaser,  either  to  an  heir  or  to  a  widow,  or  to  the  fatherless,  or  to  creditors, 
or  even  to  one  purchaser  against  another.'  "  2  Ves.  jun.  457. 

Nothing  can  be  clearer  than  that  a  purchaser  for  valuable  consideration, 
without  notice  of  a  prior  equitable  right,  obtaining  the  legal  estate  at  the  time 
of  his  purchase,  is  entitled  to  priority  in  equity,  as  well  as  at  law,  according 
to  the  well-known  maxim,  where  equities  are  equal,  the  laio  shall  prevail. 

Nor  will  a  court  of  equity  prevent  a  bona  fide  purchaser  without  notice  from 
protecting  himself,  against  a  person  claiming  under  a  prior  equitable  title,  by 
getting  in  the  outstanding  legal  estate,  because,  as  the  equities  of  both  parties 
are  equal,  there  is  no  reason  why  the  purchaser  should  be  deprived  of  the  ad- 
vantage he  may  obtain  at  law  by  his  superior  activity  or  diligence.  See  Golc- 
horn  v.  Alcock,  2  Sim.  552. 

To  so  great  an  extent  has  equity  favored  purchasers  bona  fide  without  notice, 
that  it  appears  by  Culpepper's  case,  cited  by  Lords  Commissioners  Trevor  and 
Rawlinson,  in  Sanders  v.  Deligne,  Freem.  Ch.  Hep.  123,  that  where  a  man 
liad  bought  gavelkind  land  of  the  eldest  son,  and  paid  his  purchase-money 
witliout  knowledge  that  it  was  gavelkind,  and  afterwards  for  a  song  bought  in 
P  5^,.-|  the  titles  of  the  younger  brothers,  who  were  ignorant  of  their  titles, 
*it  was  yet  held,  that  they  could  not  be  relieved  afterwards  in  equity; 
for  it  was  said  that  the  purchaser,  having  honestly  paid  his  money  without 
notice,  might  use  what  means  he  could  to  fortify  his  title.  In  Sir  John  Fagg's 
case,  cited  1  Vern.  52,  ''a  purchaser  came  into  a  man's  study,  and  there  laid 
hands  on  a  statute  that  would  have  fallen   on   his   estate,  and  put  it  in  his 

Show.  537.  And  ultimately,  upon  a  special  verdict,  the  Court  was  of  opinion  that 
there  was  no  revocation ;  and,  upon  a  writ  of  error,  the  judgment  in  B.  R.  was  affirmed 
by  the  House  of  Lords.  See  Sir  Edward  Ilungerford  v.  Nosworthy,  Show.  P.  C.  14G  ; 
and  see  1  Vern.  351. 


BASSET     V.      NOSWORTHY. 


pocket ;  and  in  that  case,  he  having  thereby  obtained  an  advantage  in  law, 
though  so  unfairly  and  by  so  ill  a  practice,  the  Court  would  not  take  that  ad- 
vantage from  him  ;"  S.  C,  nom.  Sherli/  v.  Fagg,  1  Ch.  Ca.  68;  and  in  Ilar- 
court  v.  Knowel,  cited  2  Vern.  159,  a  purchaser  was  allowed  to  take  advantage 
of  a  release  obtained  from  the  grantee  of  a  rent  charge  without  consideration, 
and  by  fraud.  And  see  Siddon  v.  Charnelh,  Bunb.  298.  These,  however, 
were  extreme  cases,  showing,  indeed,  how  partial  equity  is  to  purchasers,  but 
extending  the  doctrine  of  protection  to  them  farther  than  it  would  be  carried 
at  the  present  day. 

Where  the  equitable  title  of  the  purchaser,  who  had  got  in  the  legal  estate, 
depended  upon  a  forged  will,  he  was  held  entitled  to  the  protection  of  the 
Court.  See  Jones  v.  Powles,  o  My.  &  K.  581 ;  in  which  case  a  person  ad- 
vanced money  upon  the  mortgage  of  an  estate,  which  the  mortgagor  claimed 
under  a  will,  which  ultimately  turned  out  to  be  forged,  and  got  a  conveyance 
of  the  legal  estate,  which  was  outstanding,  in  a  mortgagee  whose  debt  had  been 
satisfied.  Upon  a  bill  being  filed  by  the  heiress-at-law,  it  was  held,  by  Sir 
John  Leach,  M.  R.,  that  the  mortgagee,  being  a  purchaser  without  notice  of 
the  plaintiff's  title,  could  protect  herself  by  the  legal  estate.  "  My  impres- 
sion," said  his  Honor,  ''  at  the  opening  of  this  case  was,  that  the  protection  of 
the  legal  estate  extended  only  to  cases  where  the  title  of  the  purchaser  for 
valuable  consideration  without  notice  was  impeached  by  reason  of  some  secret 
act  or  matter  done  by  the  vendor,  or  those  under  whom  he  claimed;  but,  upon 
full  consideration  of  all  the  authorities  which  have  been  referred  to,  and  the 
dicta  of  judges  and  text  writers,  and  the  principles  upon  which  the  rule  is 
grounded,  I  am  of  opinion  that  the  protection  of  the  legal  estate  is  to  be  ex- 
tended, not  merely  to  cases  in  which  the  title  of  the  purchaser  for  valuable 
consideration  without  notice  is  impeachable  by  reason  of  a  secret  act  done,  but 
also  to  cases  in  which  it  is  impeached  by  reason  of  the  falsehood  of  a  fact  of 
title  asserted  by  the  vendor,  or  those  under  whom  he  claims,  where  such  asserted 
title  is  clothed  with  possession,  and  the  falsehood  of  the  fact  asserted  could  not 
have  been  detected  by  reasonable  diligence."     See  1  J.  &  L.  261. 

And  not  only  where  the  purchaser  *has  actually  obtained,  but  where 
he  has  the  best  right  to  call  for  the  legal  estate,  will  he  be  entitled  to  L  'J 
the  protection  of  equity ;  Willoughhy  v.  Willoughhy,  1  T.  R.  763 ;  Blahe  v. 
Sir  Edward  Eungerford,  Prec.  Ch.  158;  Charlton  v.  Low,  3  P.  Wms.  328; 
Ex  parte  Knott,  11  Ves.  609;  Shine  v.  Gough,  1  Ball  &  B.  436;  Bowen  v. 
Evans,  1  J.  &  L.  264.     And  see  ante,  vol.  1,  p.  503. 

But  though  a  purchaser  bona  fide  without  notice  may,  after  notice,  obtain 
the  legal  estate,  buy  in  an  incumbrance,  or  lay  hold  on  any  plank  to  protect 
himself,  "  yet  he  shall  not  protect  himself  by  taking  a  conveyance  from  a  trustee 
after  he  had  notice  of  the  trust;  for,  by  taking  a  conveyance  with  notice  of 
the  trust,  he  himself  becomes  the  trustee,  and  must  not,  to  get  a  plank  to  save 
himself,  be  guilty  of  a  breach  of  trust."  See  Saunders  v.  Dehew,  2  Vern. 
271;  S.  C,  nom.  Sanders  v.  Deligny  &  Barns,  Freem.  C.  C.  123  ;  Allen  v. 
Knight,  5  Ilare,  272.     But  as  the  first  mortgagee  is   not  a  trustee  for  the 


54  BONA     FIDE     PURCHASERS. 

second,  although  he'have  notice  of  his  mortgage,  a  third  mortgagee  advancing 
his  money  without  notice  of  the  second  may  gain  priority  over  it  hy  taking  a  , 
conveyance  of  the  first :  Peacock  v.  Burt,  (Coote,  Mortg.  Append.) 

An  important  question  arises,  when  the  person  seeking  the  aid  of  equity 
against  a  bona  fide  purchaser  comes  himself  fortified  with  the  legal  estate;  and 
one  might  have  supposed  that  the  Court,  acting  up  to  the  maxim,  "  where 
equities  are  equal,  the  laic  shall  prevail,"  would,  whether  the  bill  were  for  dis- 
covery or  relief,  give  aid  against  the  purchaser.  The  authorities,  however, 
have  determined  otherwise.  In  the  principal  case,  it  will  be  observed,  the 
plaintiff,  claiming  under  a  legal  title  as  heir,  sought  the  assistance  of  the 
Court ;  but  Lord  Nottingham  left  him  to  get  whatever  remedy  he  could  at 
law,  observing,  "  that  equity  will  not  disarm  a  purchaser,  but  assist  him ;  and 
that  precedents  of  this  nature  were  very  numerous,  where  the  Court  had  refused 
to  give  any  assistance  against  a  purchaser,  either  to  an  heir,  or  to  a  widow,  or 
to  the  fatherless,  or  to  creditors,  or  even  to  one  purchaser  against  another." 
In  Burlace  v.  Cooke,  Freem.  Ch.  Ca.  24,  an  heir  exhibited  a  bill  for  discovery 
of  evidence  concerning  lands  of  his  ancestor's ;  the  defendant  swore  that  he 
was  a  purchaser  of  the  lands,  and  the  heir  demanded  a  sight  of  his  writings  ; 
but  Lord  Nottingham  said  that  he  should  not  see  them.  For  although  the 
heir,  prima  facie,  had  a  legal  title,  he  might  go  into  a  court  of  law  if  he  pleased  j 
but  this  Court  would  not  compel  the  showing  of  writings  to  any  person,  unless 
he  had  an  equitable  title,  as  a  mortgagee ;  and  that  was  the  difference  between 
P^o-i  a  legal  and  equitable  *title.  In  Rogers  v.  Scale,  Freem.  Ch.  Ca.  84, 
Lord  Nottingham,  on  the  contrary,  made  this  distinction,  "  that  where 
the  plaintiff"  hath  a  title  in  law,  there,  though  the  defendant  doth  purchase 
without  notice,  yet  he  shall  discover  writings ;  but  otherwise,  it  is  if  the  plain- 
tiff hath  only  a  title  in  equity;  for  there,  if  the  defendant  purchased  witliout 
notice,  he  shall  never  discover,  nor  make  good  the  plaintiff's  title."  These 
two  first  decisions  of  Lord  Nottingham,  both  of  which  are  badly  reported,  are 
clearly  contradictory.  In  Parker  v.  Bli/thmore,  Prec.  Ch.  58,  the  plaintiff  had 
a  legal  title,  but  the  deed  under  which  he  claimed  was  lost,  upon  his  filing  a 
bill  setting  up  the  deed.  Sir  John  Trevor,  M.  R.,  was  of  opinion  that  the  plea 
of  the  defendant,  that  he  was  a  purchaser  for  valuable  consideration  without 
notice,  was  good ;  but  it  was  not  necessary  actually  to  decide  the  question,  as 
the  plaintiff,  by  replying  to  the  plea,  had  admitted  its  validity. 

In  Williams  v.  Lamhe,  3  Bro.  C.  C.  264,  a  widow  filed  a  bill  against  a  pur- 
chaser from  her  husband,  claiming  her  dower.  The  defendant  pleaded,  that 
he  was  a  purchaser  of  the  estate,  (subject  to  a  mortgage,)  for  valuable  consi- 
deration, without  notice  of  fhe  vendor  being  married.  Lord  Thurlow,  how- 
ever, overruled  the  plea,  observing,  that  the  only  question  was,  whether  a  plea 
of  purchase  without  notice  would  lie  against  a  bill  to  set  out  dower;  he  thought, 
where  a  party  is  pursuing  a  lajal  title,  as  dower  is,  that  plea  docs  not  apply,  it 
hein'j  only  a  bar  to  an  equitable,  not  to  a  legal  claim.  He  therefore  overruled 
the  plea,  though  he  said  he  could  not  see  how  the  plaintiff"  could  proceed 


BASSET     V.     NOSWORTHY.  55 

without  making  the  mortgagee  a  party,  as,  if  it  turned  out  that  the  mortgage, 
(being  in  fee,)  was  before  the  marriage,  there  would  be  au  end  to  her  title. 

In  Jerrard  v.  Saunders,  2  Ves.  jun.  454,  (where,  however,  neither  Parker 
V.  Blythmore  nor  Williams  v.  Lamhe  are  cited,)  Lord  Rosslyn  said  he  had 
looked  into  Rogers  v.  Scale,  Freem.  Ch.  Ca.  84;  that  it  was  impossible  it 
could  be  the  determination  of  Lord  Nottingham,  that,  if  the  plaintiif  has  a 
legal  title,  the  defendant  could  not  protect  himself  as  a  purchaser  for  valuable 
consideration,  but  he  might  if  the  plaintiff  had  an  equitable  title;  that  it  was 
directly  contrary  to  what  he  laid  down  in  Bui-lace  v.  Cooke,  soon  after  he 
got  the  Great  Seal ;  that  the  very  reverse  was  often  stated  by  him  ;  that  it  was 
laid  down  by  him,  that,  against  a  purchaser  for  valuable  consideration,  this 
Court  had  no  jurisdiction  ;  that  Fagg's  case,  (cited  1  Vern.  52,)  was  deter- 
mined by  him  ;  the  defendant  had  picked  up  from  the  conveyancer's  table  the 
deed  that  affected  his  title,  and  though  he  got  it  in  that  manner,  Lord  Not- 
tingham would  not  oblige  him  to  set  it  forth.  However,  in  ^Strode  v.  r>i:q-| 
Blackhurne,  3  Ves.  222,  Lord  Rosslyn  said,  that  the  plea  of  purchase 
for  valuable  consideration  without  notice,  was  a  shield  to  the  possession,  and 
that  he  found  it  very  difficult  to  imagine  a  case  in  which  it  could  be  used  for 
any  other  purpose  than  to  defend  the  actual  possession ;  and  accordingly  in 
that  case,  where  a  bill  being  filed  by  the  tenant  for  life  in  possession,  under  a 
settlement  for  discovery  or  delivery  of  the  title-deeds,  the  defendant  pleaded 
a  mortgage  in  fee  by  a  former  tenant  for  life  alleging  himself  to  be  seised  in 
fee,  without  notice  of  the  settlement ;  his  Lordship  ordered  the  plea  to  stand 
for  an  answer,  with  liberty  to  except. 

In  the  important  case  of  Wcdicyn  v.  Lee,  9  Ves.  24,  Lord  Eldon  considered, 
not  only  that  the  plea  was  good  as  against  the  plaintiff  with  a  legal  title,  but 
also,  (clearly  overruling  Strode  v.  Blackhurne,')  that  the  fact  of  the  plaintiff 
being  in  possession,  gave  him  no  claim  to  the  assistance  of  the  Court  against 
a  bona  fide  purchaser  without  notice.  In  that  case  a  tenant  in  tail  in  posses- 
sion under  a  marriage  settlement,  filed  a  bill  for  discovery  and  delivery  of  title 
deeds  of  an  estate  which  had  been  mortgaged  by  his  father,  who  was  tenant 
for  life  under  a  settlement,  and  a  private  Act  of  Parliament.  The  defendant 
pleaded  that  the  plaintifl''s  father,  alleging  himself  to  be  seised  in  fee,  and 
being  in  actual  possession  of  the  premises  as  apparent  owner,  and  being  also 
in  actual  possession  of  the  title  deeds  relating  thereto,  as  apparent  owner 
thereof,  and  having  the  disposal  thereof,  esecuted  the  several  mortgages 
(stating  them)  under  which  the  defendant  claimed,  and  averred  that  the  de- 
fendant, and  the  other  mortgagees  through  whom  he  derived,  had  no  notice. 
It  was  argued  for  the  plaintiff,  that,  as  the  defendant  neither  was  in  possession, 
nor  had  the  means  of  procuring  it,  the  Court  ought  not  to  permit  him  to  keep 
the  deeds  for  the  sole  purpose  of  extortion.  Lord  Eldon,  however,  allowed 
the  plea.  "This  bill,"  said  his  Lordship,  ''is  filed  by  a  person  having  got 
possession.  If  the  principle  is,  that  this  Court  will  not  stir  against  a  purcha- 
ser for  valuable  consideration  without  notice,  what  are  the  legal  rights  of  the 
son,  tenant  in  tail,  when  his  father's  life  estate  determines  ?     His  legal  rights 


56  BONA     FIDE     PURCHASERS. 

are,  that  he  shall  have  possession  of  the  estate  :  I  do  not  know  that  I  am  en- 
titled to  say,  of  the  title  deeds,  but  that  he  shall  recover  in  trover  the  value 
of  the  deeds,  or  in  detinue,  in  which  the  judgment  is  for  the  deeds,  or  the 
value.  But,  without  attending  to  the  imperfection  of  the  law  in  such  actions? 
which  is  probably  the  ground  of  the  jurisdiction  here  for  the  specific  delivery 
of  the  thing,  /  icill  suppose  his  rujht  at  law  to  he  (he  spccijic  delivery.  It  is 
r  *i  01  ^^^'^j  ^^^  ^^  ^0*  seeking  in  equity  to  recover  possession  of  the  estate. 
*]jut  he  is  seeking  to  recover  something,  which  he  cannot  recover  a^ 
law,  the  value  of  which  non  constat  he  can  recover  at  law  without  the  disco- 
very of  the  deeds.  Is  it  of  necessity,  then,  that  this  Court  must  hold  as 
against  a  purchaser  for  valuable  consideration  without  notice,  that,  if  the  pos- 
session of  the  estate  has  been  got  from  him,  the  possession  of  the  deeds  shall 
be  taken  out  of  his  hands  by  this  Court,  and  thrown  in  to  the  person  who  has 
got  from  him  the  possession  of  the  estate  ?  I  do  not  go  further  to  consider, 
whether  the  possession  can  be  forever  withheld  from  him,  reserving  that,  and 
doubting  whether,  upon  the  argument  of  this  plea,  the  Court  has  any  right  to 
discuss  that  question,  or  to  take  upon  itself  to  say,  as  the  ground  upon  which 
it  is  in  this  state  of  things  to  proceed,  that  the  possession  may  be  forever 
withheld  from  him.  Is  it  not  worth  consideration,  whether  the  very  principle 
of  this  plea  is  not  this  :  *  I  have  honestly  and  bona  fide  paid  for  this,  in  order 
to  make  myself  the  owner  of  it,  and  you  shall  have  no  information  from  me  as 
to  the  perfection  or  imperfection  of  my  title,  until  you  deliver  me  from  the 
peril  in  which  you  state  I  have  placed  myself,  in  the  article  of  purchasing 
bona  fide  V 

"  Is  it  not  worth  consideration,  whether  every  plea  of  purchase  for  valuable 
consideration  without  notice  does  not  admit  that  the  defendant  has  no  title  ? 
If  he  has  a  good  title,  why  not  discover  ?  I  apprehend  there  is  sufficient 
ground  for  saying,  a  man  who  has  honestly  dealt  for  valuable  consideration 
without  notice  shall  not  he  called  vpon,  hy  confessions  tvrung  from  his  con- 
science, to  say  he  has  missed  his  ohject  in  the  extent  in  which  he  meant  to  ac- 
quire it.  I  doubt,  therefore,  the  argument  calling  upon  the  Court  to  presume 
that  this  man  can  bring  no  ejectment;  that,  if  he  did,  he  could  not  recover; 
that  he  has  not  now  the  legal  fee;  that  he  has  not  some  term  vested  in  him; 
that  he  may  not  be  able  to  procure  either;  and  presuming  that,  at  the  hazard 
of  preventing  him  from  doing  that  very  thing,  if  he  is  at  this  moment  engaged 
in  the  endeavor  to  do  it.  It  is  asked  whether  the  Court  is  to  permit  extor- 
tion, by  enabling  the  defendant  to  withhold  tlie  deeds  from  the  owner?  Is 
not  the  very  doubt,  whether  this  Court  will  call  upon  the  defendant  to  admit 
that  the  plaintiff  is  the  owner.?  Next,  the  possession  of  the  deeds  at  least  is 
a  thing  purchased  with  the  estate;  and  if  it  happens  that  the  purchase  mi.sscs 
its  object  to  this  extent,  that  the  purchaser  has  had  the  possession  taken  from 
him  without  the  assistance  of  this  Court,  is  there  a  clear  principle,  that,  there- 
fore, the  possession  of  the  deeds  shall,  with  the  assistance  of  the  Court,  be 
recovered  by  that  person  who  so  obtained  possession  of  the  estate  ?     I  am  not 


BASSET     V.     NOSWORTHY.  57 

sure  that  *follows  as  a  principle  of  sound  equity,  if  the  principle  of  the  r  ^iq  -it 
Court  is,  i\iSii  against  a  purchaser  for  valuable  consideration  icithout 
notice  this  Court  gioes  no  assistance.  Feeling  this  case  to  be  of  great  impor- 
tance, with  reference  to  the  transactions  of  the  world  especially,  if  I  shall  be 
compelled  to  infringe  upon  an  authority  to  which  I  look  with  great  respect, 
but  which  at  this  moment  I  cannot  think  consistent  with  the  doctrine  of  this 
Court  as  to  a  purchaser  for  valuable  consideration  without  notice,  I  am  obliged 
to  take  some  further  time."  The  plea  having  stood  a  considerable  time  for 
judgment,  was  allowed. 

It  might  have  been  thought,  that,  after  the  decision  of  Wahct/n  v.  Lee,  the 
question  would  have  been  set  at  rest.  However,  in  Collins  v.  Archer,  1 
Russ.  &  3Iy.  284,  a  rector,  in  1811,  demised  his  rectory  to  A.  for  a  term  of 
years,  to  secure  the  due  payment  of  an  annuity.  In  1814,  he,  for  valuable 
consideration,  demised  the  tithes  of  certain  lauds  within  the  rectory  to  the 
occupier,  B.,  who,  at  the  time,  had  no  notice  of  the  prior  charge.  The 
annuity  fell  into  arrear  in  1816,  and  in  1817  the  rector  took  the  benefit  of  the 
Insolvent  Act.  B.  remained  in  the  occupation  of  the  lands,  and  retained  the 
tithes,  claiming  to  be  entitled  to  them  under  the  deed  of  1814 ;  and  no  step 
was  taken  to  enforce  payment  until  1827,  when  A.  filed  against  him  a  bill  for 
an  account;  in  answer  to  which  B.  insisted  that  he  was  a  purchaser  for  valua- 
ble consideration  without  notice.  But  it  was  held  by  Sir  John  Leach,  M.  R., 
that  the  defendant  ought  to  account  for  the  tithes  for  the  six  years  before  the 
filing  of  the  bill.  "  Following,"  said  his  Honor,  "  the  case  of  Williams  v. 
Lamhe,  and  the  general  principle  of  a  court  of  equity,  I  am  of  opinion  that 
that  defence  is  of  no  avail  against  the  legal  title."  In  this  case  neither  Bur- 
lace  V.  Cooke,  ParherY.  Blythmore,  Jerrarcl  v.  Saunders,  nor  Wahv)/7i  v.  Lee, 
were  cited,  either  in  the  argument  or  judgment. 

The  subject,  however,  afterwards  met  with  full  consideration  by  Lord  Chan- 
cellor Sugden,  in  the  case  of  Joi/ce  v.  De  Moleyns,  2  J.  &  L.  374,  where  the 
doctrine  laid  down  in  Wahcyn  v.  Lee  was  approved  of  and  acted  upon.  There, 
the  heir-at-law  obtained  possession  of  title  deeds  relating  to  impropriate  tithes, 
of  which  his  second  brother,  under  the  will  of  their  father,  was  tenant  for 
life,  and  deposited  them  with  bankers  by  way  of  equitable  mortgage,  to  secure 
a  sum  which  they  advanced  to  him.  Upon  a  bill  being  filed  by  the  administra- 
tor of  a  bond-creditor  of  the  father,  for  the  administration  of  his  estate,  and 
praying  that  the  bankers  might  be  decreed  to  deliver  up  the  deeds,  the  bankers 
insisted  that  they  were  purchasers  for  valuable  consideration,  without  notice  of 
the  will,  *or  of  the  title  of  any  persons  claiming  thereunder,  or  of  the  r^fc-i.^-i 
demands  of  the  plaintiff";  and  submitted  that  the  bill  should  either  be  ^  '^ 
dismissed,  or  that  the  plaintiff  should  redeem  them.  And  Lord  Chancellor 
Sugden  dismissed  the  bill  as  against  the  bankers,  with  costs.  "  It  is  clear," 
observed  his  Lordship,  "  that  the  persons  entitled  to  the  tithes  may  maintain 
trover  for  the  deeds.  There  is  no  question  as  to  their  title  to  recover  at  law; 
but  I  apprehend  that  the  defence  of  a  purchase  for  value  without  notice,  is  a 
shield,  as  icell  against  a  legcd  as  an  equifahte  title.     There  has  been  a  con- 


58  BONA     FIDE     PURCHASERS. 


siderable  difference  of  opinion,  upon  the  subject  amongst  judges.  I  must 
decide  the  question  for  myself;  and  I  have  always  considered  the  true  rule  to 
be  that  which  I  have  stated.  Therefore,  I  think  that  tlic  mere  circumstance 
that  this  is  a  legal  right,  is  not  a  bar  to  the  defence  set  up,  if  in  other  respects 
it  is  a  o-ood  defence.  That  it  is  a  good  defence,  cannot  be  denied.  Suppose 
a  tenant  for  life  under  a  will,  with  remainder  over;  and  that  the  tenant  for 
life,  being  the  heir-at-law  of  the  testator,  conveys  the  inheritance  to  a  purchaser 
without  notice,  the  remainderman  cannot  have  any  relief  in  equity  against 
the  purchaser.  He  must  establish  his  title  outside  of  this  Court,  as  well  as 
he  can.  It  is  the  same  with  respect  to  title  deeds.  Deeds  are  chattels;  and, 
where  no  adverse  claimant  interferes,  the  person  entitled  to  the  estate  is  en- 
titled to  the  deeds.  But  the  person  who  has  possession  of  the  deeds  may  deal 
with  them  as  with  any  other  chattels,  subject  to  the  rights  of  those  who  are 
interested  in  them.  Here  a  person  obtains  the  possession  of  title  deeds,  having 
no  title  to  the  estate  ;  another  person  advances  money  to  him  upon  the  security 
of  a  deposit  of  the  deeds.  The  rule,  therefore,  comes  into  operation,  (for  it 
applies  equally  to  real  estate  and  to  chattels,)  that  if  a  man  advance  money 
bona  fide,  and  without  notice  of  the  infirmity  of  the  title  of  the  seller,  he  will 
be  protected  in  this  Court,  and  the  parties  having  title  must  seek  relief  else- 

■v^here In  answer  to  the  objection  made  by  the  defendants,  it  is 

urged  that  they  are  equitable  mortgagees,  and  brought  before  the  Court  in 
that  character,  and  that  the  Master  will,  under  the  decree,  report  on  their 
title;  and  so  they  may,  under  the  decree,  have  what  is  their  right.  That, 
however,  is  merely  begging  the  question  ;  for,  if  their  title  as  purchasers  for 
value  enables  them  to  say  that  the  bill  must  be  dismissed  as  against  them  ; 
then  the  plaintiff  offers  them  nothing ;  for  he  says  that  the  person  who  pledged 
the  deeds  had  no  interest  of  any  kind  in  the  estate :  therefore,  though  the 
plaintiff  treats  them  as  equitable  mortgagees  of  the  estate,  yet  at  the  hearing 
_^,o-|  he  denies  them  that  character;  and  they  cannot  fill  the  *character  of 
'-  -'  equitable  mortgagees  of  the  deeds,  for  the  person  depositing  them  had 
no  title.  The  defendants,  therefore,  use  the  possession  of  the  deeds,  as  they 
have  a  right  to  do,  as  a  shield  to  protect  them  against  the  plaintiffs.  They 
can  make  no  use  of  the  deeds  themselves ;  they  cannot  maintain  possession  of 
them  against  the  true  owner :  but  in  this  Court  they  have  a  right  to  say  that 
they  ought  not  to  be  compelled  to  deliver  them  up,  as  they  obtained  them 
bona  fide  and  without  notice."  On  the  following  day  his  Lordship  said,  that 
Lord  Eldon  had  decided  the  very  point  in  Wahv/yn  v.  Lee,  9  Ves.  24,  and 
added,  that  in  Bernard  v.  Drought,  1  Moll.  38,  Sir  A.  Hart  extended  the 
doctrine  to  the  case  of  a  solicitor's  lien,  but  in  Smith  v.  Chichester,  2  D.  & 
War.  393,  he  considered  that  it  had  been  carried  too  far. 

So,  in  Bowen  v.  Evans,  1  J.  &  L.  2(34,  Lord  Chancellor  Sugden  said  that 
in  his  opinion,  whether  the  purchaser  has  the  legal  estate,  or  only  an  equitable 
interest,  he  may,  by  way  of  defence,  avail  himself  of  the  character  of  a  pur- 
chaser without  notice,  and  is  entitled  to  have  the  bill  dismissed  against  him, 
though  the  next  hour  he  may  be  turned  out  of  possession  by  the  legal  title. 


BASSET     V.      NOSWORTHY.  59 

See  also  Payne  v.  Compton,  2  Y.  &  C.,  Exch.  Ca.  457  ;  Attorney-General  v. 
Wilkins,  17  Beav.  285  ;  Lane  v.  Jackson,  20  Beav.  535  ;  Hope  v.  LiddeU, 
21  Beav.  183  ;  Penny  v.  Watts,  1  Mac.  &  Gr.  150 ;  CoJyer  v.  Finch,  5  H.  L. 
Cas.  905;  Gomm  v.  Parrott,  5  W.  R.  882,  C.  P.,  where  this  doctrine  has 
been  approved  of  and  followed.  It  may  therefore  at  last  be  considered  as 
settled  that  a  person,  although  he  has  only  an  equitable  estate,  may  avail  him- 
self of  the  defence  that  he  is  a  purchaser  for  valuable  consideration  even 
against  a  person  having  a  legal  title. 

The  principle  however  of  the  cases  that  decide,  that  the  defence  of  being  a 
purchaser  for  valuable  consideration  without  notice,  can  be  made  by  persons 
not  having  the  legal  estate,  is  not  applicable  to  cases  where  there  is  a  legal 
mortgagee,  so  as  to  say,  that  he  is  not  entitled  to  enforce  the  equitable  remedy, 
incidental  to  his  security,  against  a  subsequent  mortgagee  or  purchaser  who 
has  advanced  his  money  without  notice  of  the  prior  incumbrance.  See  Finch  v. 
Shaw,  and  CoJyer  v.  Finch,  19  Beav.  500 ;  there  Finch  the  plaintiff  in  the 
first  suit  in  1842,  became  first  legal  mortgagee  of  an  estate  of  the  defendant 
Shaw,  and  Colyer  the  plaintiff  in  the  second  suit  became  purchaser  of  the 
estate  in  1849.  It  was  held  by  Sir  John  Romilly,  M.  R.,  that  Colyer  could 
not  set  up  as  a  defence  to  a  bill  of  foreclosure  by  the  first  mortgagee,  that  he 
was  a  purchaser  for  valuable  consideration  without  notice  of  the  mortgage. 
His  Honor,  after  stating  that  he  had  no  doubt  as  to  the  propriety  *of  ^  ^-ii-i 
the  decisions  with  respect  to  purchasers  for  valuable  consideration  with- 
out notice,  observed,  "  It  would  be  a  new  and  a  very  dangerous  doctrine,  to 
say,  that  where  a  person  has  mortgaged  property  to  one,  and  given  him  a  legal 
mortgage,  and  has  afterwards  mortgaged  the  same  property  to  a  second,  con- 
cealing the  existence  of  the  first  mortgage,  the  first  mortgagee  is  to  be  de- 
prived of  his  ordinary  rights  in  this  Court,  incidental  to  his  mortgage.  I 
have  found  no  case  that  leads  to  that  conclusion,  and  on  the  contrary,  it 
appears  to  me  inconsistent  with  the  whole  doctrine  of  this  Court  I'elating  to 
tacking."  ....  And  after  observing  that  there  were  several  cases  upon  the 
subject,  which  might  require  some  nicety  of  distinction  to  reconcile  precisely, 
and'noticing  the  cases  of  WilUams  v.  Lamhe,  (3  Bro.  C.  C.  264,)  and  Collins  v. 
Archer,  (1  Russ.  &  My.  284,)  his  Honor  added,  "  The  distinction  I  appre- 
hend to  be  this  : — if  the  suit  be  for  the  enforcement  of  a  legal  claim  or  the 
establishment  of  a  legal  right,  then,  although  this  Court  may  have  jurisdic- 
tion in  the  matter,  it  will  not  interfere  against  a  purchaser  for  valuable  consi- 
deration without  notice,  but  leave  the  parties  to  law ;  if  on  the  other  hand, 
the  legal  title  is  perfectly  clear,  and  attached  to  that  legal  title  there  is  an 
equitable  remedy,  or  an  equitable  right,  which  can  only  be  enforced  in  this 
Court.  I  have  not  found  any  case,  nor  am  I  aware  of  any,  where  this  Court 
will  refuse  to  enforce  the  equitable  remedy  which  is  incidental  to  the  legal 
right."  The  case  of  Colyer  v.  Finch  was  on  appeal  afiirmed  by  the  House  of 
Lords,  (5  H.  L.  Cas.  905  ;)  and  Lord  Cranworth,  C,  observed  that  the  rea- 
sons of  the  Master  of  the  Rolls  were  no  doubt  perfectly  satisfactory,  but  that 
he  should  proceed  on  a  shorter  ground,  "  For  the  purpose,"  said  his  Lordship, 


60  BONA     FIDE     PURCHASERS. 

"  of  the  question,  wlictlier  the  Court  would  interfere  against  a  purchaser  for 
vahxable  consideration  without  notice,  a  foreclosure  is  not  relief  at  all.  The 
mortiragee  who  seeks  foreclosure  stands  in  such  a  position  to  the  mortgagor, 
or  the  purchaser  from  the  mortgagor  for  valuable  consideration  without  notice, 
that  that  purC|liaser  can  at  any  time  file  a  bill  to  redeem  the  mortgage ;  and 
that  being  so,  it  would  be  most  unjust  if  there  was  not  a  correlative  right  on 
the  part  of  the  mortgagee  to  say,  '  You  shall  redeem  now,  or  you  shall  never 
redeem.'  Therefore  I  think  that  is  a  ground  which  entirely  puts  an  end  to 
all  question  as  to  Mr.  Finch's  suit,  and  that  he  would  be  entitled,  unle-<s  so 
far  as  it  is  interfering  with  the  other  suit,  to  the  decree  which  the  Master  of 
the  Rolls  has  given  him ;  namely,  the  ordinary  foreclosure  decree."  See  also 
Burlace  v.  C(Jok,  Freem.  Ch.  Ca.  24. 

r^ir-i  *The  defence  that  a  person  is  purchaser  for  valuable  consideration 
will  not  prevent  the  Court  from  protecting  property  pending  litigation. 
Thus  in  Grecnslade  v.  Dare,  17  Beav.  502,  where  a  bill  was  filed  to  impeach 
a  conveyance  of  an  advowson,  Sir  John  Romilly,  M.  R.,  restrained  the  insti- 
tution of  a  clerk  presented  by  a  person  who  set  up  the  defence  that  he  was  a 
purchaser  for  valuable  consideration  without  notice.  "  Although,"  said  his 
Honor,  '■'■  this  Court  regards  with  favor  the  case  of  a  purchaser  for  valuable 
consideration  without  notice,  yet  there  being  a  real  question  in  the  cause 
between  the  plaintiiF  and  the  defendant,  it  does  not  allow  the  defendant  to 
take  the  fruit,  on  an  allegation  on  his  part,  even  though  supported  by  evidence, 
until  the  hearing  of  the  cause,  for  then,  and  not  until  then,  is  the  question  in 
the  cause  to  be  determined."  Upon  the  hearing  the  bill  was  dismissed  with 
costs,  20  Beav.  284. 

And  it  is  clear  that  although  a  court  of  equity  will  assist  a  widow  by  putting 
a  term  out  of  her  way,  where  third  parties  are  not  interested,  it  will  not  give 
that  assistance  against  a  purchaser:  D'Arnj  v.  Bhihc,  2  S.  &  L.  388;  Lady 
Radnor  v.   Vandehendy,  Free.  Ch.  65 ;  Show.  F.  C.  09. 

In  Baker  v.  Morgans,  2  Dow,  526,  Baker,  in  1781,  by  an  ejectment  for 
non-payment  of  rent,  entered  upon  the  possession  of  a  widow,  tenant  for  life 
of  a  lease  for  lives  renewable  for  ever,  remainder  to  her  children,  who  were 
infants.  Baker  demised  part  of  the  premises  to  J.  C  Beresford,  and  part  to 
J.  Coghlan.  The  children,  in  1806,  long  after  they  came  of  age,  filed  their 
bill  for  relief  against  Baker,  Beresford,  and  Coghlan;  but  it  was  held  by  the 
House  of  Lords,  reversing  a  decree  of  the  Irish  Court  of  Exchequer,  that  there 
was  no  ground  for  interference  in  equity,  Lord  Redesdale  observing,  that  the 
chief  question  as  to  the  interference  of  equity  in  such  cases,  had  come  before 
him  in  the  case  of  0'  Comior^-y.  Lord  Bandon,  (2  S.  k  L.  679;)  that  it  was 
only  a  question  at  law,  and  that  the  length  of  time  during  which  one  of  them 
had  been  of  age  before  proceeding  commenced,  would  be  a  strong  objection, 
even  at  law.  "  He  could  not,"  he  added,  "  dismiss  the  subject  without 
adverting  to  the  situation  in  which  Bcrcsfcjrd  and  Coghlan  were  placed  by  the 
decree.  It  was  important  to  keep  in  view,  that  they  were  both  purchasers  for 
valuable  consideration.     Both  had  taken  possession,  and  expended  money  on 


BASSET     V.     NOSWORTHY.  Gl 

the  premises ;  and  this  was  the  first  time  when  equity  had  turned  a  purchaser 
for  valuable  consideration  out  of  possession  when  the  legal  title  was  in  him. 
The  eifect  of  turning  them  out  of  possession  was  to  vest  a  right  of  action  in 
them  against  Baker,  who  would  thus  be  involved  in  difficulties  beyond  descrip- 
tion. *Was  a  purchaser  for  valuable  consideration  bound  to  see  that  r^-ip-i 
the  whole  of  a  proceeding  at  law  under  which  the  vendor  or  lessor  was 
in  possession,  was  perfectly  regular  ?  There  never  was  a  time  when  equity  so 
dealt  with  purchasers  for  valuable  consideration.  Even,  if  this  ground,  then, 
was  tenable  as  against  Baker,  it  was  not  tenable  as  against  them.  But  there 
was  nothing  here  to  warrant  the  plaintiffs  to  proceed  in  equity  in  any  way  • 
the  proceeding,  if  any  were  competent,  must  be  at  law.  They  did  not  state 
that  they  wanted  any  necessary  instrument ;  there  was  no  affidavit  to  the  bill 
of  any  such  being  lost ;  and  it  even  appeared  by  their  own  showing,  that  they 
had  evidence  to  proceed  by  ejectment,  if  they  had  so  chosen.  Equity,  there- 
fore, could  not  interfere." 

In  many  other  respects  favor  is  shown  to  bona  fide  purchasers.  Thus,  a 
commission  of  bankruptcy  will  not  be  superseded  for  fraud,  if  there  have  been 
purchasers  under  it ;  for,  a  commission  being  superseded,  all  falls  with  it. 
i^Ex  parte  Edwards,  10  Ves.  104;  Ex  parte  Leman,  13  Ves.  271 ;  Ex  parte 
Rawson,  1  V.  &  B.  160;  Ex  parte  Lautour,  1  M.  &  B.  89.)  Nor  will  a 
court  of  equity  relieve  against  a  mere  accident,  {Ilarvi/  v.  Woodhouse,  Sel. 
Ch.  Ca.  80;)  or  rectify  a  mistake,  {BcIIy.  CundaJl,  Amb.  101,)  so  as  to  affect 
a  purchaser  without  notice.  The  mistake  or  ignorance  of  parties  to  a  convey- 
ance of  their  claims,  will  not  turn  to  the  prejudice  of  a  bona  fide  purchaser  : 
Maiden  v.  Menill,  2  Atk.  8 ;  Marshall  v.  Collett,  1  Y.  &  C,  Esch.  Ca.  238. 
So,  in  Sturge  v.  Starr,  2  My.  &  K.  195,  a  man  already  married,  performed 
the  ceremony  of  marriage  with  a  woman,  and  joined  with  her  in  assio-nino-  her 
life  interest  in  a  trust  fund  to  a  purchaser ;  it  was  held,  that  though  she  might 
not  have  executed  such  an  instrument,  had  she  been  aware  of  the  fraud  prac- 
tised upon  her,  that  fraud  could  not  affect  the  rights  of  a  bona  fide  purchaser. 

How  purchaser  may  defend  himself. — 1st.  By  demurrer,  if  it  appear  clearly 
on  the  face  of  the  bill,  that  the  defendant  was  a  purchaser  for  valuable  consi- 
deration without  notice;  see  Mitf.  Tr.  PI.  199,  4th  ed. 

2nd.  By  plea,  which  must  be  sworn  to  by  the  defendant :  Marshall  v.  Frank, 
Free.  Ch.  480.  The  plea  must  aver  that  the  person  who  conveyed  was  seised, 
or  pretended  to  be  seised,  when  he  executed  the  conveyance  :  Story  v.  Lord 
Windsor,  2  Atk.  630  ;  Jackson  v.  Roioe,  4  Buss.  514 ;  and  that  he  was  in 
possession,  if  the  conveyance  purported  an  immediate  transfer  of  the  posses- 
sion at  the  time  when  he  executed  the  purchase  or  mortgage  deed  :  Treva- 
nian  v.  Mosse,l  Vern.  246  ;  Lady  Laneshorouffh  v.  Lord  Kilmaine,  2  Moll. 
403. 

If  it  be  of  a  particular  estate  *and  not  in  possession,  it  must  set  out 
how  the  vendor  became  entitled  to  the  reversion:  Hughes  v.  Garth    L  "^*^ 
Amb.  421.     But  if  the  purchaser  set  up  a  fine  and  non-claim  as  a  bar  to  the 
plaintiff's  right,  it  is  not  sufficient  to  aver,  that,  at  the  time  the  fine  was  levied 


62  BONA     FIDE     PURCHASERS. 

the  seller  of  the  estate  being  seised,  or  pretending  to  be  seised,  conveyed,  &c., 
but  it  must  be  averred  that  he  was  actually  seised :  Story  v.  Lord  Wind- 
sor, 2  Atk.  630;  Page  v.  Lever,  2  Ves.  jun,  450;  Dohson  v.  Lcadbeater,  13 
Ves.  230.  The  plea  must  aver  the  actual  consideration :  (^Millard's  case, 
Freem.  Ch.  Ca.  43;  Wagstaff  v.  Read,  2  Ch.  C.  156;)  although,  in  some 
cases,  it  has  been  held  sufficient  to  aver  generally  that  it  was  valuable  :  (J/ore 
V.  Mayliow,  1  Ch.  Ca.  34;  Day  v.  Arundel,  Hard.  510;)  but  it  must  aver 
that  the  consideration  was  bona  fide  paid,  not  merely  secured  to  be  paid : 
Hardingham  v.  Nicholls,  3  Atk.  304;  Molony  v.  Kernan,  2  D.  &  War.  31. 
A  mere  statement  of  the  payment  in  the  recital  of  the  purchase  deed  in  the 
plea  will  not  be  sufficient :  Maitland  v.  Wilson,  3  Atk.  814 ;  and  if  the  con- 
sideration be  valuable,  equity  will  not  inquire  whether  it  be  adequate ;  because, 
as  is  laid  down  in  the  principal  case,  "  the  question  is  not  whether  the  con- 
sideration be  adequate,  but  whether  it  be  valuable ;  for  if  it  be  such  a  con- 
sideration as  will  make  the  defendant  a  purchaser  within  the  statute  27  Eliz., 
and  bring  him  within  the  protection  of  that  law,  he  ought  not  to  be  impeached 
in  equity:"  More  v.  Mayliow,  1  Ch.  Ca.  34;  Wagstaff  v.  Read,  2  Ch.  Ca. 
156  ;  Bulloch  v.  Sadlier,  Amb.  764;  Mildmay  v.  Mildmay,  cited  Amb.  767. 
The  plea  must  also  deny  notice  of  the  plaintiff's  title  or  claim  j>revious  to 
the  execution  of  the  purchase  deeds  and  the  payment  of  the  consideration ; 
for  if  he  had  notice  before  either  the  execution  of  the  deeds,  or  the  payment 
of  the  consideration,  he  would  be  bound  by  it :  Lady  Bodmin  v.  Yandehendy, 

1  Vern.  179;  Jones  v.  Thomas,  8  P.  Wms.  243;  Attorney- General  y.  Gower, 

2  Eq.  Ca.  Ab.  685,  pi.  11;  More  v.  3layhoto,  1  Ch.  Ca.  34;  Story  v.  Lord 
Windsor,  2  Atk.  630.  And  the  notice  so  denied  must  be  notice  of  the  exist- 
ence of  the  plaintiff's  title,  and  not  merely  notice  of  the  existence  of  a  per- 
son who  could  claim  under  that  title;  Kelsal  v.  Bennet,  1  Atk.  522,  over- 
ruling Brampton  v.  Barker,  cited  2  Vern.  159. 

Notice  must  be  denied  whether  it  be  charged  in  the  bill  or  not :  Aston  v. 
Curzon,  and  Weston  v.  Berkeley,  3  P.  Wms.  244,  n.  (/) ;  Brace  v.  Duchess 
of  Marlborough,  2  P.  Wms.  491,  6th  Resolution ;  Hughes  v.  Garner,  2  Y.  & 
C.,  Exch.  Ca.  328.  Notice  of  fraud  must  be  denied  by  way  of  averment  in 
the  plea,  otherwise  the  fact  of  notice  of  fraud  will  not  be  *in  issue, 
-I  {Harris  v.  Ingledew,  3  P.  Wms.  94 ;  Meadows  v.  Duchess  of  Kingston, 
Amb.  756 ;  IToare  v.  ParJcer,  1  Bro.  C.  C.  578 ;  S.  C,  1  Cox,  224 ;  Jackson 
V.  Rowe,  4  Russ.  514.)  But  it  will  be  sufficient  if  they  are  denied  generally; 
for  it  is  not  the  office  of  a  plea  to  deny  particular  facts  of  notice,  even  if  such 
particular  facts  are  charged :  Pennington  v.  Beechey,  2  S.  &  S.  282  ;  Thring 
V.  Edgar,  2  S.  &  S.  274 ;  CoVk  v.  Wilcork,  5  Madd.  328.  If,  however,  parti- 
cular instances  of  notice  of  fraud  arc  charged,  the  plea  must  be  accompanied 
by  an  answer  denying  the  notice  or  fraud  as  specially  and  particularly  as 
charged  by  the  bill,  so  that  the  plaintiff  may  be  at  liberty  to  except  to  its  suf- 
ficiency, (Pennington  v.  Beechey,  2  S.  &  S.  282;  and  see  Anon.,  2  Ch.  Ca. 
161;  Price  v.  Price,  1  Vern.  1S5;  JIardman  v.  Ellames,  5  Sim.  650;  2  My. 
&  K.  732.)     But  a  general  denial  will  be  sufficient  since  the  orders  of  August, 


BASSET     V.      NOSWORTHY. 


1841,  where  the  interrogatory  is  framed  in  general  terms  :  Gordon  v.  Shoio, 
14  Sim.  293. 

A  settlement  in  consideration  of  marriage  may  of  course  be  pleaded  as  a 
purchase  for  valuable  consideration,  (Harding  v.  Jlardrett,  Kep.  t.  Finch,  9 ;) 
but  if  it  be  made  after,  in  pursuance  of  an  agreement  before  marriage,  the 
agreement  must  be  stated  in  the  plea  as  well  as  the  settlement :  Lord  Keeinr 
V.  Wyld,  1  Vern.  139. 

A  plea  of  a  purchase  for  valuable  consideration  protects  a  defendant  from 
giving  any  answer  to  a  title  set  up  by  the  plaintiif ;  but  a  plea  of  a  bare  title 
only  will  not  be  sufficient :  Brereton  v.  Gamul,  2  Atk.  241.  And  where  a 
defendant  has  a  right  to  plead  to  a  discovery  of  deeds  and  writings,  he  must 
except  his  own  purchase  deeds,  for  he  pleads  them  :  Scdkeld  v.  Science  2 
Ves.  107.  ' 

3rd.  By  Answer. — If  a  purchaser  without  notice  neglects  to  protect  him- 
self by  plea,  he  may  defend  himself  by  answer,  {Attorney- General  v.  Wilkins, 
17  Beav.  285,  291 ;)  but  if  he  submits  to  answer,  he  must,  according  to  the 
general  rule,  answer  fully,  although  he  might  by  demurrer  or  plea  have  pro- 
tected himself.  ^' It  was,"  observed  Lord  Lyndhurst,  "for  some  time  con- 
sidered an  exception  to  the  rule  when  the  defence  was  a  purchase  for  valuable 
consideration  without  notice,  {Jerrard  v.  Saunders,  2  Ves.  jun.  454 ;  Rowe  v. 
Teed,  15  Ves.  372  ;  Leonard  v.  Leonard,  1  Ball.  &  B.  323,)  but  in  the  case 
of  Ovey  V.  Leighton,  (2  S.  &  S.  234,)  where  that  point  came  distinctly  before 
Sir  John  Leach,  he  said  that  it  fell  within  the  same  principle,  and  he  decided 
accordingly;  and  afterwards  the  present  Vice-Chancellor  of  England,  in  the 
case  of  The  Earl  of  Porta rlington  v.  Soulby,  (7  Sim.  28,)  acted  upon  that  de- 
cision. I  consider,  therefore,  that  this  is  no  longer  to  be  considered  an  ex- 
cepted case ;  and  that  a  party  *whose  defence  is,  that  he  is  a  purchaser 
for  valuable  consideration  without  notice,  cannot,  if  he  chooses  to  make  L  -'^^J 
that  defence  by  his  answer,  refuse  to  answer  consequential  matters;  and  that, 
if  he  wishes  to  protect  himself  from  that  necessity,  he  ought  to  avail  himself 
of  the  defence  by  plea  or  demurrer."     Lancaster  v.  Evors,  1  Ph.  352. 

In  a  case  in  the  House  of  Lords,  Lord  Eldon  made  the  following  remarks 
as  to  the  different  defences  which  might  be  set  up  by  a  purchaser :  '^Certainly 
there  is  a  great  difference,"  said  his  Lordship,  "  in  point  of  prudence,  between 
pleading  that  he  was  a  purchaser  for  valuable  consideration  without  notice, 
and  running  the  risk  of  what  may  appear  at  the  hearing.  If  a  man  buys  an 
estate,  and  a  bill  is  filed,  and  a  title  shown  to  relief,  he  may  plead  that  he  is  a 
purchaser  for  valuable  consideration  without  notice;  and  he  must  support 
this  plea  by  denying  all  the  circumstances  from  which  notice  maybe  implied; 
and  if,  after  all  that  can  be  said  to  charge  him  with  notice,  he  is  hardy  enough 
to  swear  that  he  had  no  notice,  and  to  deny  all  the  circumstances,  and  he  does 
plead,  and  refuses  to  try  the  question  in  any  other  way,  then  it  must  rest  very 
much  with  his  own  conscience.  But  if  he  forbears  to  plead,  and  if  it  turns 
out  in  the  progress  of  the  suit  that  he  was  a  purchaser  for  valuable  considera- 
tion without  notice,  it  is  too  much  to  deprive  him  of  the  effect  of  that,  mereW 


64  BONA     FIDE     PURCHASERS. 


'because  he  does  not  stop  the  suit  at  first,  if  it  be  so  in  fact."     Lord  Ranch'ffe 
V.  Parkins,  6  Dow,  230. 

Hitherto  it  has  been  taken  into  consideration  how  far  a  purchaser  without 
notice  can  defend  himself,  and  by  what  means,  but  equity  will  not  only  stand 
neutral,  and  render  no  aid  against  a  purchaser,  it  will  also,  as  laid  down  by 
Lord  Nottingham  in  the  principal  case,  assist  him.  Thus,  upon  the  applica- 
tion of  a  bona  fide  purchaser  without  notice,  ancient  statutes,  (Pembroke  v, 
Pi/re,  Toth.  158;  Biuyh  v.  Wolfe,  Toth.  IGO,)  sleeping  mortgages,  or  incum- 
brances under  which  no  claim  has  for  a  long  time  been  made,  (Butter  v.  Bart- 
Ipy,  Toth.  IGO;  Ahdy  v.  Loveday,  llep.  t.  Finch,  250;  Sihson  v.  Fletcher, 
1  Ch.  Rep.  59  ;  Lord  Dillon  v.  Castelloe,  2  Moll.  512  ;  Wallace  v.  Lord  Done- 
gal, 1  D.  &  Walsh,  401,)  have  been  decreed  by  the  Court  to  be  delivered  up, 
cancelled,  or  vacated. 

Where  a  person,  knowing  his  own  title  to  property,  even  although  covert  or 
under  age,  encourages,  or  even  lies  by,  and  permits  a  purchaser  to  buy  it, 
equity  will  compel  such  person  to  convey  to  the  purchaser  :  [  Wendell  v.  Renn- 
sellaer,  1  Johnson's  Ch.  354 ;  Vanhorn  v.  Frick,  3  S.  &  R.  278 ;  Carr  v. 
Wdlace,  7  Watts,  100 ;  Jmis  v.  Pierce,  7  Foster,  503 ;  Biggins  v.  Ferguson, 
14  Illinois,  269  ;  2  Smith's  Leading  Cases,  660,  5th  Am.  ed.;  Belknapp  v. 
Kevins,  2  Johnson,  573;  Cheeneij  v.  Arnold,  18  Barbour,  435;  Saunderson 
V.  Ballance,  2  Jones  Eq.  322  ;  Godefrey  v.  Caldwell,  2  California,  489.]  See 
Savage  v.  Foster,  9  Mod.  35 ;  in  which  case  a  mother  being  entitled  under  a 
settlement  to  a  life  interest  in  an  estate,  with  remainder  to  a  daughter  by  a 
first  marriage  in  tail,  on  the  marriage  of  her  daughter  by  a  second  marriage, 
^conveyed  the  land  to  her  own  use  for  life,  with  remainder  to  the  in- 
V*~^^  tended  husband  and  his  heirs.  The  daughter  by  the  first  marriage, 
and  her  husband,  who  knew  the  lands  were  settled  upon  her  in  tail,  solicited 
her  mother  to  make  the  conveyance,  and  assisted  in  carrying  on  the  marriage. 
The  lands  were  afterwards  sold,  and  upon  a  bill  being  filed  by  the  purchaser, 
it  was  decreed  that  the  eldest  daughter  should  levy  a  fine  to  the  plaintiff,  to 
extinguish  her  right  to  the  lands  in  the  settlement,  and  that  the  plaintiff 
should  have  a  perpetual  injunction  to  quiet  his  possession,  "  This  bill,"  it 
was  observed  by  the  Court,  "is  brought  to  be  relieved  against  a  fraud  in  the 
defendant,  who  would  avoid  the  plaintiff's  title  by  an  elder  settlement,  though 
she  was  privy  to  and  assisting  in  carrying  on  the  marriage  of  him  under  whom 
the  plaintiff  claims,  and  never  gave  any  notice  of  the  title  to  the  purchaser. 
Now,  when  anything  in  order  to  a  purchase  is  publicly  transacted,  and  a  third 
person,  knowing  thereof,  and  of  his  own  right  to  the  lands  intended  to  be 
purchased,  doth  not  give  the  purchaser  notice  of  such  right,  he  shall  never 
afterwards  be  admitted  to  set  up  such  right  to  avoid  the  purchase  :  for  it  was 
apparent  fraud  in  him  not  to  give  notice  of  his  title  to  the  intended  purchaser; 
and  in  such  case  infancy  or  coverture  shall  he  no  excuse;  for  though  the  law 
prescribes  formal  conveyances  and  assurances  for  the  sales  and  contracts  of 
infants  and  femes  covert,  which  every  person  who  contracts  with  them  is  pre- 
sumed to  know;  and  if  they  do  not  take  such  conveyances  as  are  necessary. 


BASSET     V.     NOSWORTHY.  65 

tlieyare  to  be  blauied  fur  tlieir  own  carelessness,  when  they  act  with  their  eyes 
open  ;  yet,  when  their  ritlit  is  secret,  and  nut  known  to  the  purchaser,  but  to 
themselves,  or  to  such  others  who  will  nut  give  the  purchaser  notice  of  such 
right,  so  that  there  is  no  laches  in  him,  this  Court  will  relieve  against  that 
right,  if  the  person  interested  will  not  give  the  purchaser  notice  of  it,  know- 
ing he  is  about  to  make  the  purchase ;  neither  is  it  necessary  that  such  infant 
or  feme  covert  should  be  active  in  promoting  the  purchase,  if  it  appears  that 
they  wei-e  so  privy  to  it  that  it  could  not  be  done  without  their  knowledge." 
See  also  Ilohhs  v.  Norton,  1  Vern.  136;  2  Ch.  Ca.  128;  ^Raio  v.  Pole,  2 
Vern.  239;]  Hanning  v.  Ferrers,  2  Eq.  Ca.  Ab.  356,  pi.  20  ;  Clare  v.  Earl 
of  Bedford,  13  Yin.  536;  ^^'atH  v.  Cressxcell,  9  A^in.  415;  S.  C,  nom.  Watts 
V.  Haihwell,  4  Bro.  C.  C.  507,  n. ;  Berrisford  v.  Milward,  2  Atk.  49 ;  Cory 
V.  Gertcken,  2  Madd.  40;  Mangles  v.  Dixon,  1  Mac.  &  Gr.  437;  Thompson 
V.  Simpson,  2  J.  &  L.  110;  Govett  v.  Richmond,  7  Sim.  1;  Nicholson  v. 
Iloop.r,  4  My.  &  Cr.  179,  185,  186;  Overton  v.  Banister,  3  Hare,  503.  And 
see,  and  consider,  Stikeman  v.  Dawson,  1  De  Gr.  ct  Sm.  90  :  ^Wriaht 
V.  Snoice,  2  De  Gr.  &  Sm.  321;   Vauglianx.  Vanderstegen,  2  Drew.  363.  L   "^  -• 

Upon  the  same  principle,  if  a  person  having  an  incumbrance  on  an  estate, 
deny  the  fact  upon  an  inquiry  being  made  by  a  person  about  to  purchase  it, 
equity  will  relieve  against  the  incumbrance  :  Ihhotsony.  Rhodes,  2  Vern.  554; 
Amy's  case,  cited  2  Cb.  Ca.  128 ;  Hickson  v.  Aylicard,  3  Moll.  1  :  so  like- 
wise, where  upon  a  treaty  for  a  mortgage  of  an  estate,  a  person  who  was  en- 
titled to  be  recouped  out  of  the  estate,  in  case  a  certain  incumbrance  was  levied 
out  of  his  own  estate,  was  in  communication  with  the  mortgagee,  to  whom  he 
was  referred  as  a  person  to  give  information  upon  the  subject  of  the  transac- 
tion, but  he  gave  the  mortgagee  no  information  of  his  equitable  claim,  it  was 
held  by  Lord  Chancellor  Sugden  that  he  could  not  afterwards  set  up  his  claim 
against  the  mortgagee :  Boyd  v.  Belton,  1  J.  &  L.  730. 

If  a  trastee,  in  whom  property  is  vested,  represent  it  as  unincumbered,  he 
will  be  answerable  to  the  purchaser  in  case  it  turns  out  that  he  has  had  notice 
of  an  incumbrance,  and  he  will  not  be  allowed  to  allege  forgetfulness  as  an  ex- 
cuse.     See  Burrows  v.  Lock,  10  Ves.  470,  475. 

Mere  silence,  however,  on  the  part  of  an  incumbrancer,  where  he  is  not 
brought  into  contact  with  parties  engaged  in  any  transaction  relative  to  the 
property  upon  which  he  claims  a  charge,  or  where  he  is  not  called  upon  by- 
them  to  speak  concerning  it,  will  not,  it  seems,  amount  to  a  waiver  of  it  on  his 
part.  Thus,  in  Oshorn  v.  Lea,  9  Mod.  96,  the  Court  was  of  opinion,  "  that 
it  would  be  very  hard  for  a  mortgagee  to  be  at  the  peril  of  losing  his  mortgage 
money,  if  he  did  not  give  notice  of  his  mortgage  to  any  person  whom  he  knew 
to  treat  about  the  sale,  or  any  settlement  of  the  lands, in  his  mortgage;  and 
that  it  very  much  differed  from  the  case  where  the  mortgagee  himself  helps  to 
carry  on  such  treaty." 

Even  where  a  person  has  been  induced  to  become  a  purchaser,  by  the  mis- 
representation of  another,  ignorant  of  his  own  right,  but  where  he  might  have 
had  notice  of  it,  equity  will  relieve  the  purchaser;  [Shirlc/y  v.  Viright,  2  Ohio, 

VOL.  II. — 5 


QQ  BONA     FIDE     PURCHASERS. 


N.  S.  506 ;]  thus,  in  Teasdale  v.  Teasdale,  Sel.  Ch.  Ca.  59,  a  father,  supposing 
his  son  to  be  tenant  in  fee,  stood  by  and  let  his  son  make  a  settlement  on  his 
intended  wife  for  her  jointure.  The  father,  after  the  decease  of  his  son,  dis- 
covered that  he  was  only  tenant  for  life,  and  that  the  fee  was  in  himself,  on 
which  title  he  had  a  verdict,  and  judgment  at  law.  Upon  a  bill  being  filed 
by  the  son's  widow,  it  was  insisted  on  behalf  of  the  father,  that  the  case  was 
different  from  the  cases  where  persons  cognizant  of  their  title  had  concealed 
them ;  that  the  father  did  not  know  of  his  title,  and  therefore  could  not  be 
r  *99i  ^^^^  *o  conceal  it.  But  Lord  King  said  *he  should  make  no  difference 
'-  """  whether  he  knew  of  this  title  or  not,  considering  the  near  relation  of 
father  and  son.  It  was  plain,  it  was  thought  the  son  had  the  fee;  and,  had  it 
been  known  it  was  in  the  father,  it  would  have  been  insisted  on  that  he  should 
have  joined,  else  the  marriage  would  not  have  been  had ;  as  he  knew  of  the 
settlement,  he  should  not  take  advantage  against  it.  See,  also,  Pearson  v. 
Morgan,  2  Bro.  C.  C.  388. 

[The  distinction  seems  to  be  between  participation  or  procurement,  and  silence 
or  acquiescence ;  the  one  imposing  no  liability,  unless  there  is  wilful  conceal- 
ment or  fraud:  Clahaufjli  v.  Bi/erli/,  7  Gill,  384;  Strong  v.  Ellsicorth,  26 
Vermont,  369  ;  while  the  other  may  create  a  bar,  notwithstanding  good  faith 
and  fair  dealing,  by  rendering  it  more  just  to  throw  the  loss  on  the  party  in 
whose  conduct  it  originated,  than  on  a  purchaser  who  has  been  induced  to  buy 
by  assurances,  which,  though  believed  at  the  time,  turn  out  to  be  unfounded. 
Wells  V.  Fierce,  7  Foster,  503;  Willis  v.  Sirartz,  4  Casey,  413;  Beanpland 
V.  M'Kcen,  lb.  124;  M'Kelvey  v.  Truly,  4  W.  &  S.  323.  No  one  should  be 
made  answerable  for  stating  his  opinion  truly,  or  for  answering  the  questions 
put  to  him  according  to  his  belief  or  conviction  :  Parker  v.  Barker,  2  Met- 
calf,  421  ;  Laurence  v.  Bro^vn,  1  Selden,  394  ;  Morris  v.  Ifoore,  1  Hum- 
phreys, 343  ;  Tilghman  v.  West,  8  Iredell,  83  ;  RoysUm  v.  Howie,  15  Alabama, 
309  •  but  the  case  is  widely  different  where  one  man  induces  another  to  buy 
or  expend  money  on  land,  by  statements  or  representations  which  are  untrue 
in  fact,  although  made  under  the  influence  of  mistake  and  without  an  intention 
to  deceive  :  Stiles  v.  Cowper,  3  Atkyns,  692;  Buchanan  v.  Moore,  13  S.  &  R. 
394  ;  Rohinson  v.  Erwin,  2  Penna.  19  ;  M'Kelvey  v.  Truly  ;  Wells  v.  Pierce, 
2  Smith's  Leading  Cases,  662,  5th  Am.  ed.  ;  and  see  post,  vol.  2,  note  to  Ryall 
v.  Rowles,  for  cases  on  the  analogous  questions  which  arise  on  the  assignment 
of  choses  in  action. 

In  M'Kc.licay  v.  Amour,  2  Stockton's  Ch,  115,  the  owners  of  two  adjacent 
lots  of  land  were  under  the  influence  of  a  mistaken  impression  as  to  the  iden- 
tity of  their  lots,  each  suppofjing  that  the  land  which  belonged  to  his  neighbor 
was  liis  own.  In  consequence  of  this  mistake,  one  of  them  built  a  house  on 
the  lot  of  the  other,  and  the  latter  stood  by  without  objecting,  while  the  build- 
in"-  was  goino-  up,  a  bill  having  been  filed,  under  these  circumstances,  for  relief, 
by  the  builder  of  the  house  against  the  owner  of  the  lot  on  which  it  was  built, 
the  Court  held  that  both  parties  were  bound  to  redress  a  common  error  for 
which  neither  could  reproach  the  other,  and  that  the  defendant  might  elect  to 


BASSET     V.     NOS  WORTHY. 


67 


retain  the  land  and  pay  for  the  building,  or  to  co'nvey  the  land  and  receive  a 
pecuniary  compensation  for  its  value,  but  that  if  he  would  do  neither,  he  should 
then  be  compelled  to  exchange  the  lot  which  belonged  to  him  for  the  adjacent 
lot,  which  both  parties  had  supposed  to  be  his  when  the  building  was  erected, 
although  it  really  belonged  to  the  complainant.] 

In  the  principal  case,  the  Lord  Keeper  justly  remarked,  that  the  rule  by 
which  a  court  of  equity  affords  protection  to  purchasers,  is  agreeable  to  the 
wisdom  of  the  common  law,  where  the  maxims  which  refer  to  descents,  dis- 
continuances, non-claims,  and  collateral  warranties,  were  only  the  wise  arts 
and  intentions  of  the  law  to  protect  the  possession  and  strengthen  the  rights 
of  purchasers.  The  same  object  has  been  constantly  kept  in  view  by  the 
Legislature,  by  which  many  statutes  have  been  enacted  for  the  protection  and 
relief  of  purchasers.     See  Sugd.  Y.  &  P.  586  to  606,  13th  edit. 

As  to  tacking  incumbrances,  see  Marsh  v.  Lee,  ante,  vol.  1,  p.  494.  As 
to  what  amounts  to  notice,  see  note  to  Le  Neve  v.  Le  Neve,  post,  p.  34. 


The  general  rule,  that  priority  in 
point  of  time,  gives  priority  in  point 
of  right,  is  recognized  by  courts  of 
equity,  as  well  as  by  those  of  common 
law;  2  Johnson's  Ch.  608;  18  Wend. 
240  ;  9  Paige,  76 ;  Watson  v.  Le  Roy, 
6  Barbour,  S.  C.  485;  Boone  v.  Chiles, 
10  Peters,  177.  Thus,  where  a  ques- 
tion arises  as  to  the  distribution  of  a 
fund  growing  out  of  the  sale  of  pro- 
perty, which  has  been  mortgaged  by 
a  debtor,  at  different  times,  to  two 
different  persons,  the  debt  due  to  the 
first  mortgagee  will  be  paid  before  that 
due  the  second,  even  where  no  legal 
estate  or  title  has  passed  to  either,  and 
where  the  claims  of  both  are  equally 
valid,  as  against  the  mortgagor;  Brace 
V.  The  Duchess  of  Marlborough,  2  P. 
Wms.  490,  495 ;  Wltlonghh/  v.  Wll- 
loughhy,  1  Term  R.  730.  But  where 
a  court  of  equity,  instead  of  dealing 
directly  with  the  thing  which  is  the 
subject-matter  in  controversy,  has  to 
reach  it  through  the  consciences  of 
the  parties,  its  jurisdiction  is  neces- 
sarily limited  to  enforcing  the  fulfil- 


ment of  their  equitable  obligations, 
and  cannot  extend  to  compelling  the 
relinquishment  of  any  right,  or  the 
abandonment  of  any  interest  which 
can  be  retained,  consistently  with 
equity  and  good  conscience.  This  prin- 
ciple applies  more  especially  where 
the  aid  of  a  court  of  chancery  is  sought 
to  enforce  the  surrender  of  an  estate 
in  land,  or  to  compel  any  one  who 
claims  such  an  estate,  to  make  a  dis- 
covery for  the  purpose  of  assisting,  or 
establishing  an  adverse  title.  Asunder 
these  circumstances,  the  court  can 
only  act  on  the  land,  through  the 
medium  of  the  parties,  it  must  first 
inquire  whether  the  party  against 
whom  its  assistance  is  sought,  is  con- 
scientiously bound  to  comply  with  the 
demand  urged  against  him,  for  if  he 
be  not,  the  case  will  fall  without  the 
scope  of  a  jiirisdiction,  which  is  found- 
ed upon  the  obligations  of  conscience. 
Hence,  it  happens,  that  although, 
when  a  contest  arises  between  two 
mortgages  of  an  equity  of  different 
dates,  each  taken  under  the  belief  that 


68 


BONA     FIDE     PURCHASERS. 


the  mortgagor  had  a  good  and  unin- 
cumbered legal  title,  equity  will  award 
payment  to  that  which  was  first  in  point 
of  time,  even  to  the  complete  exclu- 
sion of  the  other,  yet  that  as  it  re- 
spects all  questions  relating  to  the 
title  or  possession  of  the  estate  mort- 
gaged, it  regards  both  as  standing  on 
a  footing  of  equality,  and  will  not  only 
refuse  to  consider  the  priority  of  the 
one,  as  giving  any  superiority  of  right 
over  the  other,  but  will  even  allow 
the  holder  of  the  second  mortgage  to 
get  in  any  outstanding  legal  title,  for 
the  purpose,  and  with  the  effect,  of 
obtaining  payment  of  his  debt  to  the 
exclusion  of  that  due  on  the  first;  ante. 
The  distinction  thus  taken  by  techni- 
cal equity,  is  founded  upon  the  prin- 
ciples of  natural  equity  and  morality, 
which  justify  every  one  who  has  paid 
his  money  in  good  faith,  and  with  the 
full  expectation  of  acquiring  that  for 
which  he  has  paid  it,  in  endeavoring 
to  make  his  purchase  good,  even  to 
the  exclusion  of  a  prior  purchaser, 
who  has  failed  equally  with  himself 
in  acquiring  the  legal  right  to  the 
thing  purchased,  and  who  holds  noth- 
ing more  than  an  equitable  claim  of 
the  same  nature  as  his  own,  and  with- 
out any  other  feature  of  superiority, 
than  that  arising  from  mere  priority. 
If,  under  these  circumstances,  both 
h:ive  been  deceived,  and  have  been 
led  by  the  vendor  to  believe  that  they 
were  acquiring  the  property  itself,  and 
not  an  imperfect  claim  to  it,  the  mere 
circumstance  that  one  was-  wronged 
before  the  other,  does  not  bind  the 
latter  to  postpone  his  right  to  amends, 
or  forego  any  effort  to  make  his  loss 
good.  And,  on  the  other  hand,  if  the 
first  purchaser  was  aware  that  the  title 
purchased  was  imperfect,  he  is  charge- 


able with  some  want  of  diligence,  in 
not  taking  measures  to  perfect  it,  and 
cannot  complain-  if  the  steps  which  he 
has  omitted,  are  subsequently  taken 
by  the  second,  in  order  to  repair  a 
wrong,  which,  but  for  that  omission, 
might  not  have  happened.  In  neither 
of  these  cases,  is  there  any  conscien- 
tious obligation  on  the  part  of  the 
second  purchaser,  to  make  way  for  the 
first,  and  when  there  is  no  obligation 
in  conscience,  there  can,  save  in  ex- 
ceptional cases,  be  no  jurisdiction  in 
equity.  Hence,  it  was  declared  by 
Lord  Rosslyn,  in  Jerrard  v.  Saunders, 
2  Vesey,  jr.  454,  founding  himself 
upon  the  authority  of  Lord  Notting- 
ham, that  as  a  hona  fide  pui'chaser 
might  retain  the  property  purchased  in 
point  of  conscience,  he  was  necessarily 
without  the  jurisdiction  of  equity. 
This  declaration,  which  seems,  at  once, 
the  explanation  and  the  fair  result  of 
the  cases  on  the  subject,  was  substan- 
tially sustained  by  Lord  Eldon,  in  the 
subsequent  case  of  Wahcyn  v.  Lee, 
ante,  p.  55.  And  as  such  a  purchase,  by 
discharging  the  conscience  of  the  pur- 
chaser, also  discharges  the  estate  pur- 
chased, it  will  be  equally  discharged 
in  the  hands  of  any  subsequent  gran- 
tee, even  when  he  has  notice  before, 
or  at  the  time  of  the  grant.  This  rule 
is  as  sound  in  policy  as  in  logic,  for  a 
contrary  doctrine  would  not  only  be 
unjust  to  the  first  purchaser,  by  de- 
priving him  of  the  power  of  disposing 
of  the  estate  to  others,  in  the  same 
condition  in  which  he  holds  it  him- 
self, but  would  impose  a  restraint  of 
indefinite  duration  on  the  alienation 
of  property,  and  thus  prevent  its  free 
circulation  from  hand  to  hand;  Bum- 
pns  v.  Plainer,  1  Johnson's  Chancery, 
213. 


BASSET     V.     NOSWORTHY. 


69 


It  has  accordingly  been  held  in  this 
country  on  a  great  number  of  occa- 
sions, that  a  hona  fide  purchase  for 
value  without  notice,  is  a  good  defence 
not  only  against  all  prior  equities,  but 
against  all  adverse  proceedings  in 
equity,  whether  instituted  to  compel 
the  purchaser  to  surrender  what  he 
has  purchased,  or  to  discover  which 
would  prejudice  or  impair  his  means 
of  retaining  it;  Howell  v.  Afihmore, 
7  Stockton,  82;  Jones  v.  Zollicoffer, 

2  Taylor,  214 ;  Demarest  v.  Wyncoop, 

3  Johnson's  Chancery,  147 ;  High  v. 
Batfe,  10  Yerger,  335;  Woodruff  v. 
Cook,  1  Gill  &  J.  270 ';  Whittkk  v. 
Kane,  1  Id.  202;  Owings  v.  3Iason, 
2  A.  K.  Marshall,  380 ;  Goodtitle  v. 
Cummings,  Blackford,  179;  VaricJc 
V.  Briggs,  6  Paige,  323;  To^njjkins  v. 
Potcell,  6  Leigh,  576 ;  Hughson  v. 
MandeviUe,  4  Dessaussure,  87 ;  May- 
wood  V.  Luhcoclc,  1  Bailey's  Equity, 
382;  Brown  v.  Budd,  2  Carter,  442; 
Dan  V.  M'Kniglit,  6  Halsted,  385; 
Mundine  v.  Pitts,  14  Alabama,  84; 
Heilner  v.  Imbrie,  6  S.  &  R.  401 ;  and 
that  a  grantee  claiming  under  such  a 
purchaser,  stands  in  the  same  position 
with  the  grantor,  and  is  entitled  to 
the  same  favor,  even  when  aifected 
with  notice  at  the  time  of  the  grant ; 
Fletcher  v.  Peck,  6  Cranch,  36  ;  Alex- 
ander V.  Pendleton,  8  Id.  462 ;  Vattier 
V.  Hinde,  7  Peters,  252 ;  Boone  v. 
Chilles,  10  Id.  177 ;  Dana  v.  New- 
hill,  13  Mass.  498 ;  Connecticut  v. 
Bradish,  14  Id.  296;  Tridl  v.  Bige- 
low,  16  Id.  406 ;  Boynton  v.  Rees,  8 
Pick.  29 ;  Filly  v.  Miller,  1  Casey, 
264;  Rutgers  v.  Kingsland,  3  Hal- 
sted's  Chancery,  178,  658  ;  Blight's 
Heirs  V.  Banks,  6  Monroe,  198 ; 
Halstead  v.  The  Bank  of  Kentucky, 

4  J.  J.  Marshall,  554 ;    Gallatian  v. 


Erwin,  Hopkins,  48  ;  8  Cowen,  36  ; 
Bumpus  V.  Platner,  1  Johnson's 
Chancery,  213 ;  Demarest  v.  Wyn- 
coop,  3  Id.  147;  Varick  v.  Briggs, 
6  Paige,  323;  Griffith  v.  Griffith, 
9  Id.  315;  Lacy  v.  Wilson,  4  Mun- 
ford,  413 ;  Curtis  v.  Lanier,  6  Id. 
42 ;  Brackett  V.  Miller,  4  W.  &  S. 
102 ;  3Iott  V.  Clark,  9  Barr,  399  ; 
The  City  Council  v.  Paige,  Spear's 
Ch.  159  ;  Holmes  v.  Stout,  3  Green's 
Ch.  492.  And,  for  the  same  reason, 
notice  to  a  purchaser  under  a  judg- 
ment, paramount  to  an  equity,  will 
not  charge  him  with  the  equity,  be- 
cause he  is  entitled  to  fall  back  on  the 
rights  of  the  judgment  creditor,  or,  to 
speak  more  correctly,  because  the  judg- 
ment creditor  is  entitled  to  obtain  pay- 
ment of  the  debt,  and  cannot  be  pre- 
cluded from  doing  so,  by  steps  which 
come  too  late,  after  the  lien  of  the 
judgment  has  once  attached;  Hender- 
son V.  Downing,  24  Mississippi,  208. 
But  this  principle  ceases  to  be  appli- 
cable, when  an  estate,  bought  without 
notice,  isreconveyed  to  a  prior  purchas- 
er, who  sold  in  violation  of  rights,  which 
he  knew  at  the  time  of  his  purchase, 
and  whose  conscience  is  still  tainted 
with  the  original  fraud ;  Schutt  v. 
Large,  6  Barbour.  And  it  is  in  gene- 
ral, thoroughly  well  settled,  that,  to 
make  a  defence,  grounded  on  a  pur- 
chase for  value,  available,  there  must 
be  positive  good  faith,  as  well  as  ab- 
sence of  notice,  and  that  when  there 
has  been  anything  inequitable  in  the 
conduct  of  the  purchaser,  or  in  the 
circumstances  of  the  purchase,  he  will 
not  be  entitled  to  the  protection  of  a 
court  of  equity ;  Cram  v.  Mitchell,  1 
Barbour's  Chancery,  251.  When, 
however,  a  purchaser  buys  what  he 
believes  to  be  a  good  legal  title,  in 


70 


BONA     FIDE     PURCHASERS. 


sood  faith,  and  under  circumstances, 
wliich  clear  him  from  the  imputation 
of  negligence,  he  will  have  an  equal 
right  to  the  favor,  or,  more  properly 
speaking,  be  equally  exempt  from  the 
jurisdiction  of  chancery,  notwithstand- 
ing the  defects  which  may  exist  in  the 
title  thus  purchased,  and  even  when 
it  has  no  legal  or  equitable  validity, 
and  is,  in  point  of  fact,  no  title  at  all ; 
Jones  V.  Poioles,  3  Mylne  &  Keene, 
581 ;  CottreU  v.  Hughes,  15  C.  B. 
532,  554. 

It  has,  notwithstanding,  been  held, 
in  Pennsylvania,  that  when  the  legal 
title  to  land  is  acquired,  or  conveyed 
to  the  holder  of  the  equitable  estate 
or  interest,  the  latter  will  yield,  and 
be  subordinate  to  the  former,  and  that 
subsequent  grantees  must,  consequent- 
ly^ give  way  to  those  whose  rights  at- 
tached to  the  equity  at  an  antecedent 
period,  even  when  the  former  have  the 
law,  while  the  lien  of  the  latter  ori- 
ginally  fastened   on    an    unrecorded 
equity.    The  question  arose  in  Lynch 
V.  Dearth,  2  Penna.  K.  101,  between  a 
judgment  against  a  vendee,  after  the 
payment  of  the  purchase-money,  but 
before  the  delivery  of  the  deed,  and  a 
mortgage,  executed  after  the  deed  had 
been  delivered  and  put  on  record,  and 
was  decided  in  favor  of  the  judgment 
creditor;  thus  postponing  a  purchaser 
who   had   parted  with  value,  on  the 
faith  of  a  regularly  recorded  and  legal 
title,  to  an  unrecorded  equity,  on  the 
ground  that  the  latter  being  prior  in 
point  of  time,  must  prevail,  whether 
it  had  or  had  not  been  made  known 
by  any  of  the  modes  which  the  law 
regards    as    notice.     The   same  view 
was  taken  in  Foster's  Appeal,  3  Barr, 
79  ;  and  again,  in  CampbclVs  Appeal, 
6  American  Law  Ilcgistcr,  752,  705, 


although  the  circumstances  of  the 
latter  case  were  not  such  as  to  admit 
of  its  application.  This  course  of  de- 
cision is  obviously  at  variance  with  the 
well  established  rule,  that  an  equity 
cannot  be  enforced  against  a  purchaser 
who  has  parted  with  value,  and  taken 
a  conveyance  in  ignorance  of  its  ex- 
istence, which  applies  with  the  same 
force,  whether  it  resides,  or  has  its 
origin,  in  the  party  from  whom  the 
purchase  is  made,  or  in  a  third  person ; 
and  is  not  less  inconsistent  with  the 
terms  and  purpose  of  the  recording- 
acts,  which  are  obviously  designed  to 
protect  those  who  buy  a  recorded  title, 
against  all  antecedent  rights  and  titles, 
which  are  not  disclosed  by  the  record 
itself,  or  in  some  other  manner,  not 
less  efl&cacious,  and  equally  well  recog- 
nized by  the  law. 

If  it  be  necessary  to  look  for  judg- 
ments anterior  to  the  acquisition  of 
title,  it  must  be  equally  necessary  to 
look  for  deeds  and  mortgages,  and  to 
prosecute  the  search,  from  a  remote 
period,  against  every  one  who  has 
owned  the  land  in  question,  down  to 
the  moment  at  which  he  parted  with 
it ;  thus  occasioning  a  degree  of  ex- 
pense and  delay,  which  might,  in  some 
cases,  prove  a  serious  obstacle  to  the 
transmission  of  real  estate  from  hand 
to  hand. 

It  seems  to  have  been  taken  for 
granted,  both  in  Foster's  Apj'cal  and 
in  Lynch  v.  Dearth,  that  the  judg- 
ment was  notice  both  of  its  own  ex- 
istence, and  that  the  party  against 
whom  it  was  rendered  had  an  equi- 
table estate,  or  interest  of  a  nature  to 
be  bound  by  its  lien ;  but  the  con- 
trary would  seem  plain  ;  first,  because 
a  grantee  is  not  bound  to  carry  the 
search   for  judgments   further   back 


BASSET     V.     NOSWORTHY, 


71 


than  the  period  at  which  the  legal 
and  recorded  title  vests  in  the  grantor; 
Tlte  Farmer's  Loan  Association  v. 
Malthy,  8  Paige,  361 ;  Doswell  v. 
Buchanan,  3  Leigh,  365,  381 ;  Price 
on  Limitations,  210,  350,  352 ;  and 
next,  because  a  judgment  does  not 
bind  after-acquired  lands,  in  Penn- 
sjlvania,  so  that  knowledge  of  the 
judgment  would  not  have  put  the  pur- 
chaser on  his  guard,  unless  he  also 
knew  of  the  antecedent  equity.  We 
may,  perhaps,  infer  that  the  purchaser 
in  Lynch  v.  Dearth,  had  actual  notice 
that  the  vendor  had  an  equitable  in- 
terest prior  to  the  period  at  which  he 
received  the  actual  conveyance,  and 
was,  consequently,  bound  to  search 
for  j  udgments,  as  far  back  as  the  period 
at  which  the  equity  originated;  but 
this  remark  does  not  apply  to  Foster  s 
Appeal,  and  the  necessity  for  notice 
does  not  seem  to  have  occurred  to  the 
mind  of  the  court,  or  to  have  been 
an  element  in  the  decision  in  either 
instance. 

In  Preston  v.  Crowfoot,  1  Conn. 
527  ;  Roberts  v.  Anderson,  3  John- 
son's Chancery,  371 ;  and  Hope  v. 
Henderson,  3  Devereux,  12,  16,  it 
was  decided,  that  cases  arising  under 
the  13  Eliz.  c.  5,  were  an  exception 
to  the  general  rule  which  protects  pur- 
chasers for  valuable  consideration,  and 
that  where  a  grant  was  fraudulent 
under  that  statute,  a  purchaser  from 
the  grantee  without  notice,  would  not 
be  protected  against  the  creditors  of 
the  grantor,  or  parties  claiming  under 
a  judgment  obtained  by  them,  al- 
though it  was  admitted  that  such  a 
purchase  would  be  good,  as  against  a 
subsequent  purchaser  from  the  gran- 
tor, claiming  under  the  provisions  of 
the  statute,  27  Eliz.  c.  4,  for  the  pro- 


tection of  purchasers.  But  iu  Ander- 
son V.  Roberts,  18  Johnson,  516,  this 
decision  was  reversed  on  appeal  by  the 
Court  of  Errors,  who  decided  that  both 
statutes  stood  on  the  same  footing,  and 
that  the  title  of  a  bona  fide  purchaser 
would  be  good  under  either,  both  as 
against  creditors  and  subsequent  pur- 
chasers, whether  he  purchased  from 
the  grantor  or  the  grantee.  The  title 
acquired  by  a  bona  fide  purchaser, 
from  a  grantee,  in  a  deed  fraudulent 
as  against  creditors,  was  also  upheld 
in  the  cases  of  Boyce  v.  Waller,  2  B. 
Monroe,  91 ;  Ledyard  v.  Butler,  9 
Paige,  132,  and  Frazer  v.  Western,  1 
Barb.  Ch.  220,  which  would  seem  to  be 
in  accordance  with  principle  and  with 
the  general  course  of  decision  through- 
out the  Union;  Wood  v.  llarvin,  1 
Sumner,  507;  Rowley  v.  Bigelow,  12 
Pick.  307 ;  Hood  v.  Fahnestock,  8 
Watts,  489 ;  Erskine  v.  Decker,  39 
Maine,  467  ;  Sydney  v.  Roberts,  13 
Texas,  598;  Reed  v.  Smith,  14  Ala- 
bama, 38  ;  Coleman  v.  Coche,  6  Ran- 
dolph, 618 ;  1  Amer.  Lead.  Cases,  53, 
4th  ed.  It  was,  however,  said,  in  Pea- 
body  V.  Fenton,  3  Barbour's  Chan- 
cery, 451,  that  the  purchaser  will  not 
be  protected  against  the  claims  of  the 
creditors,  unless  he  has  acquired  a 
legal,  as  distinguished  from  a  mere 
equitable  title ;  but  this  dictum  would 
seem  somewhat  questionable,  the  gene- 
ral rule  being,  that  whenever  the  fraud 
consists  in  the  object  or  conduct  of  the 
parties  to  the  deed,  and  does  not  attach 
to  its  execution,  it  is  voidable  only,  and 
cannot  be  set  aside  as  against  a  subse- 
quent bona  fide  purchaser;  Somes  v. 
Brewer,  2  Pick.  184. 

An  opinion  has  been  expressed  in 
some  cases,  and  it  has  been  decided 
in  others,  that  a  purchase  for  valuable 


72 


BONA     FIDE     PURCHASERS. 


consideration,  without  notice,  cannot 
be  relied  on  as  a  defence  against  a  legal 
title;  Snelgwvev.  Snelgrove, -i  Dcs- 
saussure,  274 ;  Jones  v.  ZoUicoffcr,  2 
Taylor,  214;  Blahe  v.  Ucyicnrd,  1 
Bailey's  Equity,  208;  Larroiv  v. 
Beam,  10  Ohio,  148.  There  can  be 
no  doubt,  that  such  a  defence  must 
be  wholly  inoperative  as  a  defence  at 
law,  and  can  furnish  no  ground  for  an 
interference  by  equity  with  the  course 
of  law.  But  it  would  seem,  that  the 
right  of  the  holder  of  a  legal  title  to  re- 
lief in  equity,  must  be  limited  to  those 
cases  in  which  the  defendant  is  equi- 
tably bound  to  afford  the  relief  in 
question,  and  that  no  such  obligation 
exists  when  he  has  paid  a  valuable 
consideration,  in  tbe  full  expectation 
of  obtaining  and  holding  what  he  has 
paid  for.  If,  under  these  circum- 
stances, his  title  fail  at  law,  he  must 
submit  to  the  loss,  but  there  seems  to 
be  nothing,  on  which  to  charge  his 
conscience  in  equity.  And  the  weight 
of  English  authority,  is  decidedly  in 
favor  of  this  course  of  reasoning,  and 
asainst  the  idea,  that  the  nature  of 
the  claim  set  up  against  the  purchaser, 
can  vary  his  equitable  position ;  (infe. 
The  view  taken  by  equity  of  a  pur- 
chase for  value,  and  its  refusal  to  in- 
terfere with  the  title  of  the  purchaser, 
depend  upon  considerations  which 
are  somewhat  peculiar,  and  cannot  be 
understood  without  an  attentive  ex- 
amination. In  general,  the  title  of  a 
purchaser  is  limited  to  and  can  rise  no 
higher  than  that  of  the  seller,  for  the 
obvious  reason  that  while  the  one  can- 
not confer  more  than  he  holds  or  owns, 
the  other  cannot  acquire  what  the 
person  from  whom  he  buys  has  not 
got  to  sell.  A  bad  title,  obviously, 
cannot    be  rendered    good    by   being 


passed  from  hand  to  hand,  and  must, 
necessarily,  remain  the  same  after 
each  transfer,  that  it  was  before.  The 
whole  may  be  summed  up  in  the 
maxim  nemo  plus  juris  ad  aluim  trans- 
ferre  potest,  quam,  ipse  hahet ;  Coke, 
Lit.  309,  b.,  which  expresses  both 
the  rule  and  the  reason  on  which  it 
is  founded.  The  principle  prevails 
both  at  law  and  in  equity;  chancery 
always  following  the  law,  unless  there 
is  some  special  ground  for  departing 
from  it,  and  dealing  with  the  pur- 
chase of  equitable  estates,  as  the  law 
deals  with  the  acquisition  of  those 
which  are  legal ;  Jones  v.  Jones,  8 
Simons,  633.  Thus,  no  one  can  for- 
tify a  defective  title,  in  a  court  of  law, 
by  the  aid  of  an  allegation  that  he 
had  paid  for  it  in  good  faith,  and  in 
the  full  belief  that  the  vendor  had  a 
good  title.  In  like  manner,  the  pur- 
chaser of  an  equitable  estate  or  in- 
terest, must  stand  or  foil  in  equity  by 
the  estate  of  the  seller,  and  cannot  rely 
upon  bona  fides,  and  the  expenditure 
of  money  as  a  ground  for  protection 
against  a  prior  or  better  right  or 
equity.  His  conscience  may  be  clear, 
but  he  is  presumed  to  have  bought 
with  full  knowledge  of  the  rule,  which 
throws  the  risk  of  a  purchase  on  the 
purchaser,  and  must  submit  to  the 
consequences  of  his  ill  fortune  or  want 
of  due  care  and  diligence;  Daniel  v. 
Hollingshead,  IGGreorgia,  196;  Brown 
V.  Wood,  6  Richardson's  Equity,  155; 
Shirras-Y.  Caig,  7  Cranch,  48;  Pen- 
sonneau  v.  Bleaklei/,  14  Illinois,  15. 
When,  however,  a  suit  is  brought  in 
a  court  of  equity  on  equitable  grounds, 
or  for  the  purpose  of  enforcing  an 
equity,  against  the  holder  of  a  real  or 
supposed  legal  title,  a  different  ques- 
tion arises,  because,  if  the  legal  title  of 


BASSET     V.     NOSWORTHY. 


the  defendant  be  good,  equity,  which 
follows  the  law,  will  not  interpose 
to  take  it  away  from  him,  unless  there 
is  something  unjust  or  unconscientious 
in  his  mode  of  obtaining  it,  and  if  it 
be  bad,  a  sufficient  remedy  may  be 
had  at  law,  and  the  case  is  not  one  for 
equitable  cognisance.  Moreover,  al- 
though a  subsequent  right  must  yield 
in  general  to  one  which  is  prior  in  its 
origin,  even  when  each  is  in  itself 
equally  just  and  equitable;  yet  this 
ceases  to  be  true,  when  the  holder  of 
the  latter  has  taken  the  precaution  to 
procure  what  was,  or  appeared  to  be, 
a  good,  legal  title,  while  the  former 
rested  content  with  a  mere  inchoate 
right  or  equity.  Chancery  will,  there- 
fore, under  these  circumstanqes,  re- 
fuse to  grant  the  relief  asked,  without 
further  inquiry,  on  the  ground  that 
the  equity  of  the  respondent  is  at  least 
equal  to  that  of  the  complainant,  and 
that  the  merits  or  defects  of  his  al- 
leged legal  title,  should  be  determined 
by  the  judgment  of  a  court  of  law. 
A  plea  that  the  defendant  is  a  pur- 
chaser in  good  faith,  and  for  value,  is, 
therefore,  in  the  nature  of  an  excep- 
tion or  plea  to  jurisdiction,  which  de- 
rives its  force  not  from  general  prin- 
ciples, but  from  the  peculiar  relation 
in  which  English  equity  stands  to 
English  law,  and  is  designed  to  main- 
tain harmony  of  action  between  two 
systems  which  might  otherwise  be 
conflicting,  and  to  prevent  those  who 
have  acted  in  reliance  upon  the  rules 
of  the  one,  from  being  sacrificed  to 
the  more  exceptional  principles  of  the 
other.  It  is,  therefore,  plain,  that  the 
fiivor  shown  by  equity  to  purchasers 
for  value,  only  extends  to  those  who 
acquire  a  legal  title  to  the  thing  pur- 
chased, or  who  buy  under  the  belief 


that  they  are  acquiring  the  legal 
title;  and  that  the  purchaser  of  au 
equity,  who  knows  or  has  the  means 
of  knowing  the  nature  of  his  purchase, 
must  submit  to  the  general  rule  under 
which  the  title  of  a  vendee  is  measur- 
ed, and  limited  by  that  of  the  vendor; 
Boone  V.  Chiles,  10  Peters,  177; 
Wailes  V.  Cooper,  24  Miss.  208;  Kra- 
mer V.  Arthurs,  7  Barr,  165;  see  vol. 
1st,  notes  to  Marsh  v.  Lee,  597,  605. 
This  has  sometimes  been  stated  too 
broadly,  as  if  the  purchaser  of  an  equity 
was  necessarily  affected  with  notice  of 
every  defect  in  the  title  of  the  vendor, 
or  of  prior  estates  or  equities  created 
by  or  binding  upon  the  latter,  and 
therefore  could  not  protect  himself  by 
acquiring  the  outstanding  legal  title, 
at  or  after  the  time  of  the  purchase ; 
Sergeant  v.  Ingersoll,  7  Barr,  B40; 
3  Harris,  343.  But  the  true  state- 
ment of  the  proposition  would  seem 
to  be,  that  the  purchase  of  an  equity 
simply  gives  the  purchaser  the  estate 
which  he  buys,  in  the  condition  in 
which  it  is  when  bought,  without 
giving  it  additional  validity  on  the 
one  hand,  or  prejudicing  his  right  on 
the  other,  to  fortify  his  acquisition  by 
bulwarks  or  safegards  obtained,  from 
other  quarters;  Flagg  v.  Manii,  2 
Sumner,  486,  556.  Thus,  the  exist- 
ence of  au  outstanding  legal  estate  in 
a  trustee  in  the  form  of  a  long  term  of 
years,  or  of  any  higher  interest,  is  so 
far  from  being  a  reason  for  doubt  or 
suspicion  in  English  conveyancing, 
that  it  is  always  viewed  as  an  element 
of  strength  and  safety,  and  as  furnish- 
ing a  security  against  defects  which 
might  otherwise  be  fatal ;  Coke,  Lit. 
290,  b.  note  2 19  ;  Cottrell  v.  Hughes, 
15  C.  B.  532,  560.  Any  other  rule 
would  render  trust  estates  virtually  un- 


74 


BONA     FIDE     PURCHASERS. 


marketable,  by  rendering  tbe  utmost 
diligence  insufficient  for  the  protection 
of  the  buyer  from  antecedent  transac- 
tions lying  wholly  beyond  his  cogni- 
zance, and  of  which  he  could,  by  no 
possibility,  obtain  notice  or  informa- 
tion. There  is,  consequently,  every 
reason  for  believing  that  a  convey- 
ance by  a  trustee,  attended  by  a  re- 
lease or  confirmation  by  the  cestui  que 
trust,  affords  as  complete  a  protection 
against  prior  equities  arising  under 
the  acts  of  one  or  both  the  grantors, 
as  if  the  purchase  had  been  made 
solely  from  the  trustee,  in  ignorance 
of  the  existence  of  the  trust ;  Flagg 
V.  Mann,  2  Sumner,  486,  550.  A  dif- 
ferent view  was,  however,  taken  in 
Sergeant  v.  IngersoU,  7  Earr,  340 ;  3 
Harris,  343 ;  and  the  mere  fact  that 
the  purchase  was  made  from  a  cestui 
que  trust,  although  the  trustee  assented 
to  the  sale  and  executed  the  convey- 
ance, held  to  affect  the  purchaser  with 
notice  of  an  equity,  arising  under  a 
prior  covenant  by  the  cestui  que  trust, 
although  not  appearing  in  any  part  of 
the  chain  of  title  to  the  property  pur- 
chased. This  was  so  held,  on  the 
ground  that  the  severance  of  the  legal 
title  from  the  equitable,  in  tlie  hands 
of  the  vendor,  although  reunited  by 
the  concurrence  of  the  trustee  in  those 
of  the  vendee,  was  sufficient  to  put  the 
latter  upon  inquiry,  and  that  inquiry 
would  have  led  to  a  discovery  of  the 
true  nature  of  the  transaction.  The 
former  part  of  this  proposition  may  be 
thought  doubtful  in  point  of  law,  and 
it  is  not  easy  to  see  how  tlib  latter 
could  have  been  held  certain  in  fact. 
The  utmost  that  can  be  said  in  such 
cases  would  seem  to  be,  that  where 
the  legal  estate  is  outstanding  in  a 
trustee,  who  does  not  join  in  the  con- 


veyance, the  purchaser  is  bound  to 
make  inquiry  of  him  before  completing 
the  purchase ;  Vattier  v.  Hinde,  7 
Peters,  252,  271.  Even  under  these 
circumstances,  the  omission  to  inquire 
should  appear  affirmatively  to  affect 
the  purchaser,  for  otherwise  the  title 
purchased  would  be  left  to  the  con- 
tingency of  death,  and  the  uncertainty 
of  parol  testimony.  But  it  can  hardly 
be  supposed,  that  a  vendee  is  bound 
to  inquire  of  the  parties  to  a  convey- 
ance, whether  they  are  committing  a 
fraud  by  suppressing  anterior  deeds  or 
incumbrances,  or  by  selling  an  estate 
which  has  been  sold  to  others,  for  it 
is  evident,  that  if  fraud  be  intended, 
the  deception  will  be  carried  out  by  a 
denial.  Such  questions  are  not  asked 
in  practice  in  business  transactions, 
from  the  well  founded  conviction  that 
no  reliance  can  be  placed  on  the  an- 
swers; and  the  rules  of  law  coincide 
on  this  point  with  those  of  business, 
for  the  law  will  not  exact  anything  vain 
or  useless,  and  will  not  hold  a  purchaser 
answerable  for  not  inquiring,  unless 
the  inquiry  would  have  resulted  in 
knowledge;  Wright  v.  WoolI,  11  Har- 
ris, 120.  Hence,  no  one  is  bound  to 
ask  for  information  from  another,  un- 
less the  truth  of  the  reply  can  be  tested 
by  investigation,  or  there  is  some  other 
guaranty  for  its  freedom  from  error. 
Thus,  a  purchaser  is  bound  to  inquire 
of  those  who  hold  the  actual  posses- 
sion of  the  land,  which  he  means  to 
buy,  because  concealment  or  misrepre- 
sentation on  their  part  will  operate  as 
an  estoppel,  and  he,  consequently,  has 
a  guaranty  for  the  truth  of  the  reply. 
This  same  remark  applies  to  questions 
put  to  a  debtor  at  the  time  of  taking 
an  assignment  of  the  debt;  and  gener- 
ally to  every  inquiry  of  a  party  in  in- 


BASSET     V.     NOSWORTHY. 


75 


terest,  which  will  compel  him  to  elect 
between  telling  the  truth  and  forfeit- 
ing his  interest  by  falsehood.  But  to 
ask  a  vendor  to  disclose  a  fact  which 
makes  against  his  interest,  which  will 
prejudice  him  if  told,  but  cannot  in- 
jure him  if  concealed,  except  in  the 
general  sense  in  which  every  deceit  is 
or  may  be  injurious,  is  to  ask  that 
which  an  honest  man  will  reveal  with- 
out inquiry,  and  which  no  interroga- 
tion will  draw  from  a  rogue. 

It  is  accordingly  well  settled,  both 
on  authority  and  reason,  that  the  pur- 
chase of  a  chose  in  action,  is  not  with- 
in the  rule  which  protects  purchasers 
for  a  valuable  consideration,  and  that 
the  vendee  will  not  only  take  no  better 
title  than  that  of  his  vendor,  which  is 
true  of  all  purchases,  both  at  law  and  in 
equity,  but  will  not  be  entitled  to  set 
up  the  purchase  as  a  bar  to  equitable 
relief  and  discovery,  in  favor  of  prior 
equities  created  by  the  vendor ;  Covell 
V.  The  Tradesman' s  Bank,  1  Paige, 
131 ;  Cockell  V.  Taylor,  15  English 
Law  and  Equity,  101 ;  31angles  v. 
Dixon,  13  Id.  82.  For  as  a  purchaser 
of  real  estate  is  only  protected  under 
the  strict  rule  of  equity,  where  he  has 
obtained,  or  believes  himself  to  have 
obtained  the  legal  title,  no  protection 
can  be  afforded  to  the  purchaser  of  a 
chose  in  action,  who  necessarily  ac- 
quires a  purely  equitable  title.  This, 
however,  is  only  true  when  the  ques- 
tion arises  between  mere  equities,  for 
if  the  subsequent  purchaser  has  ob- 
tained a  legal  title  or  a  legal  superi- 
ority or  advantage  of  any  sort,  in  good 
faith  and  for  value,  equity  will  refuse 
to  interfere  for  the  purpose  of  taking 
it  away  from  him;  Baggali/x.  Gaither, 
2  Jones'  Equity,  30  ;  and  may  even 
hold  that  his  greater  diligence  or  good 


fortune,  gives  him  a  better  right  in 
equity  as  well  as  at  law;  Judson  v. 
Corcoran.  Thus,  it  is  well  known 
that  the  right  given  by  an  indorse- 
ment for  value  of  a  bill  or  note,  pay- 
able to  order,  will  have  a  preference 
over  a  prior  lien  or  transfer  made 
apart  from  the  instrument,  and  not 
written  or  indorsed  upon  it;  because 
the  one  is  at  best  a  mere  equity, 
while  the  other  passes  the  legal  title. 
The  same  principle  applies  when 
stocks  or  other  securities  of  a  similar 
nature  are  in  question,  which  are  so 
far  negotiable  as  to  give  each  succes- 
sive assignee  a  right  which  he  may 
enforce  or  assert,  in  his  own  name, 
without  being  obliged  to  have  recourse 
to  that  of  the  first  bidder ;  and  those 
who  take  the  precaution  to  procure  a 
transfer  in  due  course  of  law,  will  be 
preferred  to  others  whose  equity  may 
be  prior  in  point  of  time,  but  who 
have  failed  to  secure  it  by  the  proper 
legal  formalities;  Kortright  v.  The 
Commercicd  Bank,  22  Wend.  354; 
Dela field  v.  The  State  of  Illinois,  26 
Id.  192.  In  like  manner,  where 
the  legislature  have  provided  a  mode 
for  the  transfer  of  the  legal  title 
to  bonds  or  specialties,  those  who 
pursue  it  will  merit  the  favor  which 
equity  extends  to  purchasers,  and  will 
be  protected  against  antecedent  equi- 
ties of  which  they  are  ignorant  at 
the  time  of  taking  the  assignment; 
j)ost.  This  embraces  a  large  and  in- 
creasing class  of  obligations,  among 
which,  may  probably  be  enumerated, 
the  coupon  bonds,  frequently  issued 
by  railroad  and  other  corporations, 
which  are  so  worded  as  to  pass  by  de- 
livery from  hand  to  hand,  free  from 
the  antecedent  equities  of  third  per- 
sons ;    Craig  v.    The   City  of  Ticks- 


'6 


BONA     FIDE     PURCHASERS. 


hurg,  31  Mississippi,  216;  The  Morris 
Ciaud  and  Bankiny  Compan)/  v. 
Fisher,  1  Stockton,  GG7 ;  1  Smith's 
Leading  Cases,  603,  5tli  Am.  ed. ; 
although  not  necessarily  from  those  of 
the  parties  bywhom  they  were  origin- 
ally made  or  executed,  or  who  are 
bound  by  the  obligations  which  they 
purport  to  impose. 

It  is  ecjually  well  settled,  that  equity 
will  not  interfere  as  between  two  suc- 
cessive purchasers  of  the  same  chose 
in  action,  for  the  purpose  of  depriving 
the  second  of  any  legal  advantage,  al- 
though falling  short  of  a  full  legal 
title,  which  he  may  have  obtained  in 
good  faith  for  the  protection,  or  in  aid 
of  his  purchase.  This  view  was  taken 
in  Judson  v.  Corcoran,  17  Howard, 
612;  and  a  defendant  who  had  prose- 
cuted a  claim  against  the  Mexican 
government,  which  had  been  trans- 
ferred to  him  by  assignment,  to  a  final 
decree,  before  the  commissioners  ap- 
pointed for  that  purpose  under  a  treaty, 
held  to  be  entitled  to  retain  the  ad- 
vantage thus  gained,  against  the  plain- 
tiff who  had  taken  a  prior  assignment 
of  the  same  claim,  but  who  had  slept 
on  his  rights,  and  neglected  to  appear 
before  the  commissioners.  There  can 
be  little  doubt  that  the  transfer  of 
a  mortgage  by  a  deed  duly  executed 
for  passing  an  interest  in  land,  falls 
within  the  same  principle,  and  entitles 
those  claiming  under  it  to  a  priority 
over  prior  assignees  whose  title  is 
limited  to  an  equitable  assignment 
or  appropriation  of  the  debt,  i>ost. 
And  we  niay,  perhaps,  believe,"  that  as 
between  two  assignees  of  a  chose  in 
action  each  bona  fide,  and  for  value, 
he  should  have  the  preference,  who 
first  reduces  his  right  to  possession, 
upon  the  same  principle  which  makes 


priority  of  possession  decisive  in  a 
contest  growing  out  of  successive  sales 
of  a  chattel  by  the  same  vendor,  to  dif- 
ferent purchasers  ;  1  Smith's  Leading 
Cases,  891,  5th  Am.  ed.  The  point 
arose  in  The  Insurance  Company  v. 
Corcoran,  1  Gi*ay,  75;  but  the  case 
was  decided  on  other  grounds. 

Another  exception  to  the  general 
rule,  under  which  priority,  in  point  of 
time,  gives  superiority  of  right  in  a 
contest  between  opposing  equities,  ex- 
ists in  those  cases  where  the  holder  of 
the  antecedent  equity,  has  been  guilty 
of  laches,  which  have  facilitated  the 
commission  of  a  deceit  or  fraud  on  a 
subsequent  assignee  or  purchaser,  and 
the  case  will  then  fall  within^the  gene- 
ral rulcj  which  requires  that  a  loss 
shall  be  thrown  on  him  by  whom  it 
has  been  occasioned,  in  exoneration  of 
others,  who  are  free  from  blame;  Gar- 
land V.  IIar?-ison,  17  Missouri,  282. 
"The  contest,"  said  Catron,  J.,  in 
Judson  V.  Corcoran,  17  Howard, 
602,  614,  "  here  depends  on  the 
merits.  Judson  had  the  earliest  as- 
signment of  part  of  the  amount  de- 
clared to  be  due  to  Williams,  by  the 
two  United  States  commissioners,  in 
1842,  to  the  extent  of  $6,000,  and 
the  claim  assigned  being  a  right  de- 
pending on  an  equity  against  the  go- 
vernment of  Mexico,  and  assuming 
that  both  sets  of  assignments  are  alike 
fair,  and  originally  stood  on  the  same 
bona  fide  footing,  the  rule  of  neces- 
sity is,  that  the  assignor  having  part- 
ed with  his  interest  by  the  first  assign- 
ment, the  second  assignee  could  take 
nothing;  and,  as  he  represents  his  as- 
signor, is  bound  by  the  equities  im- 
posed on  the  latter;  2  White  &  Tu- 
dor's  E([.  Ca.  Part  2 ;  and  hence  has 
arisen  the  maxim  in  such  cases,  that 


BASSET     V.     NOSWORTHY. 


T7 


he  wlio  is  first  ia  time  is  best  in  right. 
But  this  general  rule  has  exceptions, 
and  the  case  before  us  was  obviously 
decided  in  the  court  below  on  an  ex- 
ception to  the  general  rule. 

"  Judson  took  his  assignment  in  Ja- 
nuary, 1845,  which  he  first  produced  in 
May,  1851,  when  this  bill  was  filed. 
In  the  mean  time  Corcoran  had  got 
his  assignment,  and  immediately  gave 
written  notice  of  it  to  the  Department 
of  State,  and  August  17,  1847,  re- 
ceived an  answer  from  the  secretary, 
recognizing  the  fact  of  notice  having 
been  received,  and  that  it  was  filed 
with  the  documents  of  the  postponed 
claim  of  Williams  and  Lord,  apper- 
taining to  the  unfinished  award. 

"Corcoran's  assignment  was  fair,  and 
accepted  on  his  part  without  know- 
ledge of  Judson's;  nor  is  the  con- 
trary alleged  in  the  bill.  And  assum- 
ing Judson's  to  be  fair  also,  and  that 
no  negligence  could  be  imputed  to 
him,  then  the  case  is  one  where  an 
equity  was  successively  assigned  in  a 
chose  in  action  to  two  innocent  per- 
sons, whose  equities  are  equal,  accord- 
ing to  the  moral  rule  governing  a  court 
of  chancery.  Here,  Corcoran  has 
drawn  to  his  equity  a  legal  title  to  the 
fund,  which  legal  title  Judson  seeks 
to  set  aside,  and  asks  an  afiirmative 
decree  in  his  favor  to  that  efifect. 

"  Now,  nothing  is  better  settled  than 
that  this  cannot  be  done.  The  equi- 
ties being  equal,  the  law  must  prevail. 
"  There  are  other  objections  to  the 
case  made  by  the  appellant,  growing 
out  of  negligence  on  his  part  in  not 
presenting  his  assignment  and  claim 
of  property  to  the  State  Department, 
so  as  to  notify  others  of  the  fact.  The 
assignment  was  held  up  and  operated 
as  a  latent  and  lurking  transaction, 


calculated  to  circumvent  subsequent 
assignees,  and  such  would  be  its  effect 
on  Corcoran,  were  priority  accorded 
to  it  by  our  decree.  It  is  certainly 
true,  as  a  general  rule,  as  above  stated, 
that  a  purchaser  of  a  chose  in  action, 
or  of  an  equitable  title,  must  abide  by 
the  case  of  the  person  from  whom  he 
buys,  and  will  only  be  entitled  to  the 
remedies  of  the  seller ;  and  yet,  there 
may  be  cases  in  which  a  purchaser, 
by  sustaining  the  character  of  a  hona 
fide  assignee,  will  be  in  a  better  situa- 
tion than  the  person  was  of  whom  he 
bought ;  as,  for  instance,  where  the 
purchaser,  who  alone  had  made  in- 
quiry and  given  notice  to  the  debtor, 
or  to  a  trustee  holding  the  fund,  (as 
in  this  instance,)  would  be  preferred 
over  the  prior  purchaser,  who  neglect- 
ed to  give  notice  of  his  assignment, 
and  warn  others  not  to  buy. 

''  The  cases  of  Dearie  v.  Hall,  and 
Loveridye  v.  Cooper,  3  Russell's  E. 
1,  60,  established  the  doctrine  to  the 
foregoing  efi"ect  in  England ;  they 
were  followed  in  the  case  of  Mangles 
V.  Dixon,  M'Naughten  and  Gordon's 
H.  437.  And  the  same  principle  of 
protecting  subsequent  hona  fide  pur- 
chasers of  choscs  in  action,  &c.,  against 
latent  outstanding  equities,  of  which 
they  had  no  notice,  was  maintained  in 
this  court  in  the  case  of  Bayley  v. 
Greenleaf,  7  Wheaton,  46.  That  was 
an  outstanding  vendor's  lien,  set  up 
to  defeat  a  deed  made  to  trustees  for 
the  benefit  of  the  vendee's  creditors. 
The  court  held  it  to  be  a  secret  trust; 
and  although  to  be  preferred  to  any 
other  subsequent  equity  unconnected 
with  a  legal  advantage,  or  equitable 
advantage,  which  gives  a  superior 
claim  to  the  legal  title,  still,  it  must 
be  postponed  to  a  subsequent  equal 


78 


BOXA     FIDE     PURCHASERS. 


equity  connected  with  sucli  advan- 
tage. 

"  Tlie  rule  was  distinctly  asserted 
by  Chancellor  Kent,  in  1817,  in  Mur- 
ray V.  Lyihurn,  2  Johns.  C.  C  442, 
before  the  question  was  settled  in  Eng- 
land, and  before  this  court  discussed 
it,  which  was  in  1822.  And  the  same 
principle  was  applied  by  the  Court  of 
Appeals  of  Virginia,  in  the  case  of 
Moore  V.  Hohomhe,  3  Leigh's  K.  597, 
in  1832." 

Similar  language  was  held  in  3Iay- 
hin  V.  Kirhy,  4  Richardson,  Eq.  105, 
while,  in  Fisher  v.  Knox,  1  Harris, 
622,  the  assignee  of  a  judgment,  who 
had  neglected  to  have  it  marked  to  his 
use  on  the  docket  of  the  court,  in  ac- 
cordance with  the  usual  course  of  busi- 
ness in  the  State  where  the  question 
arose,  was  postponed  to  a  subsequent 
purchaser,  who  had  bought  the  judg- 
ment, in  the  belief  that  it  still  belonged 
to  the  party  in  whose  favor  it  had  been 
originally  rendered;  the  court  taking 
the  ground,  that  one  party  had  ne- 
lectcd  a  usual  and  reasonable  precau- 
tion, and  the  resulting  injury  ought  to 
fall  upon  him,  and  not  upon  the  other. 
The  same  principle  was  applied  in  Tlic 
Mercantile  Ins.  Co.  v.  Corcoran,  1 
Gray,  75 ;  which  would  seem  to  show 
that  long  continued  laches,  in  assert- 
ing the  right  conferred  by  a  prior 
assignment,  may  postpone  it  to  a  sub- 
sequent assignee,  who  has  proceeded 
with  diligence,  and  recovered  the 
amount  of  his  claim  under  the  judg- 
ment of  a  competent  tribunal.  And  it 
has  been  said,  that  those  who  rely  on  an 
equitable  right  or  title,  are  bound  to 
do  all  that  lies  in  their  pi)W(T  to  com- 
plete it,  in  default  of  which  they  will 
be  postponed  to  subsequent  purchas- 


ers, who  have  exercised  greater  dili- 
gence ;  Mcux  V.  Bell,  1  Hare,  73. 

In  like  manner,  an  unrecorded  agree- 
ment, that  a  prior  judgment  shall  be 
postponed  to  a  mortgage,  cannot  be 
enforced  as  against  a  subsequent  as- 
signee of  the  judgment,  without  no- 
tice of  the  agreement,  because  the 
order  in  which  liens  on  land  stand  on 
the  record,  is  the  true  and  appropri- 
ate index  of  their  right  to  priority  of 
payment;  and  those  who  buy  on  the 
faith  of  what  they  find  there  written, 
are  entitled  to  protection  against  others 
who  have  been  sufficiently  negligent 
to  rely  on  a  secret  contract,  on  a  point 
where  all  legal  analogies  demand  pub- 
licity, and  have,  thus  given  an  open- 
ing for  a  fraud,  which  should,  conse- 
quently, be  visited  upon  them,  rather 
than  upon  subsequent  purchasers,  who 
are  wholly  free  from  blame;  Hend- 
rickson's  Aj)peal,  12  Harris,  363. 
These  cases  show  what  is,  indeed,  suf- 
ficiently plain,  on  principle,  that  the 
rule  prior  in  tempore  potior  in  jure, 
only  applies  as  between  equal  equities, 
and  ceases  to  be  applicable,  when  that 
which  is  anterior  in  point  of  time,  is 
attended  by  circumstances  which 
render  it  inferior  in  point  of  right. 
Hence,  even  if  the  assignee  of  a 
mortgage  were  not  a  purchaser  for 
value,  and  acquired  no  hold  on  the 
laud,  he  would  still  be  entitled  to  pro- 
tection against  a  prior  unrecorded 
deed,  which  was  not  known  to  him  at 
the  date  of  the  assignment,  although 
known  to  the  prior  holders  of  the 
mortgage,  at  or  before  the  time  when 
their  title  originated;  because  notice 
to  them  only  repairs  the  neglect  com- 
mitted in  not  recording  the  deed,  so 
far  as   they  arc  concerned,  and  still 


BASSET     V.     NOSWORTHY. 


79 


leaves  it  in  their  power  to  practise  a 
fraud  upon  subsequent  assignees,  by 
transferring  an  invalid  security,  as  if 
it  were  valid ;  Mott  v.  Clark,  10  Barr, 
399  ;  Fisher  v.  Knox,  1  Harris,  625  ; 
Rider  V.  Johnson,  8  Id.  190,  193. 
This  principle  is  carried  in  England, 
and  in  some  of  the  American  tribu- 
nals, to  the  extent  of  holding,  that 
the  purchaser  of  a  chose  in  action,  or 
of  personal  property,  held  in  trust,  is 
bound  to  give  notice  of  the  purchase, 
to  the  debtor  or  trustee,  and  thus  en- 
able the  latter  to  put  subsequent  pur- 
chasers, or  encumbrancers,  on  this 
ground.  See  note  to  Ryall  v.  Roioles, 
post,  part  2.  And,  although  many  of 
the  courts  of  this  country  have  refused 
their  assent  to  this  course  of  decision, 
yet  this  has  arisen  from  a  difference  of 
opinion,  as  to  the  application  of  the 
principle,  and  not  from  any  doubt  as 
to  the  principle  itself.  It  should, 
however,  be  remembered,  that  every 
bar  or  estoppel,  by  which  men  are  pre- 
cluded from  the  enjoyment  or  asser- 
tion of  their  rights,  on  the  ground  of 
acts  or  defaults,  which  have  become 
injurious  to  others,  operates  as  a  forfei- 
ture, and  should  not  be  enforced  with- 
out a  clear  proof  that  wrong  has  been 
done  on  one  side,  and  has  resulted  in 
injury  on  the  other;  2  Smith's  Lead. 
Cases,  661,  5th  Am.  ed. 

The  rule,  that  an  equity  may  be 
barred  or  postponed,  by  being  put  in 
a  form  to  operate  as  a  surprise  on  sub- 
sequent purchasers,  extends  beyond 
the  equities  of  third  persons,  to  those 
which  exist  between  the  original  par- 
ties, to  the  debt  or  obligation,  which 
forms  the  subject-matter  of  the  assign- 
ment, and  has  been  held  to  preclude 
an  obligor  from  setting  up  a  collateral 
or  secret  agreement,  at  variance  with 


the  tenor  of  the  bond,  as  apparent  on  its 
face,  or  expressed  of  record,  against  an 
assignee,  who  is  ignorant  of  its  exist- 
ence at  the  time  of  taking  the  assign- 
ment; Davis  V.  Barr,  9  S.  &  R.  37;  the 
ground  taken  being,  that  while  an  as- 
signee of  a  debt,  or  chose  in  action, 
evidenced  by  a  written  instrument,  is 
necessarily  subject  to  every  defence, 
which  could  be  made  by  the  debtor, 
consistently  with  the  purport  of  the 
instrument  itself,  he  ought  not  to 
be  made  to  suffer  by  a  fraud,  which 
could  not  have  been  practised  upon 
him,  had  the  contract  assigned  been 
written  according  to  its  true  intent  and 
meaning.  But  the  better  opinion  would 
seem  to  be,  that  as  the  assignee  of  a 
debt  or  contract  of  any  sort,  may  al- 
ways inform  himself  of  the  extent  and 
nature  of  the  equities  between  the 
original  parties,  by  inquiry  of  the 
debtor,  or  party  bound  by  the  contract, 
he  will  be  answerable  for  the  conse- 
quences of  neglecting  this  precaution, 
and  cannot  complain  that  he  has  pur- 
chased under  a  false  impression,  which 
might  have  been  corrected  by  adopt- 
ing proper  means  for  the  purpose; 
West/all  V.  Jones,  23  Barbour,  9.  A 
collateral  agreement,  which  limited 
and  controlled  the  operation  of  a  mort- 
gage, was  accordingly  enforced  in 
Clute  V.  Rohinson,  2  Johnson,  595, 
against  a  subsequent  assignee,  who 
had  bought  the  mortgage,  without 
notice  of  its  existence,  notwithstand- 
ing the  argument,  that  he  had  been 
misled,  by  finding  nothing  on  the  re- 
cord to  guide  him  to  a  knowledge  of 
the  agreement.  This  case  is  sustain- 
ed by  that  of  Wesffall  v.  Jones,  where 
a  point  nearly  the  same,  was  decided 
the  same  way;  while  the  ground  taken 
in  Davis  v.  Barr,  would  seem  to  have 


80 


BONA     FIDE     PURCHASERS. 


been  virtually  abandoned  in  the  sub- 
sequent case  of  Frantz  v.  Brown,  1 
Penna.  257;  where  the  general  princi- 
ple, that  the  assignee  of  a  chose  in  ac- 
tion takes  subject  to  all  equities  which 
he  might  have  learnt,  by  inquiry  of 
the  debtor,  was  applied  in  all  its  rigor. 
The  dicta,  in  many  of  the  cases, 
considered  apart  from  the  point  actu- 
ally decided,  might  tend  to  contradict 
the  view  taken  above,  and  to  create 
the  impression  that  an  equitable  as- 
signment of  a  cliose  in  action  will  have 
the  same  effect,  in  entitling  the  as- 
signee to  protection,  as  the  purchase 
of  a  real  or  supposed  legal  title  to 
land.  Among  these  may  be  cited, 
Livingston  v.  Dean,  2  Johnson's  Ch. 
479 ;  Murray  v.  Lylhurn,  lb.  443 ; 
Murray  v.  Ballon,  1  Id.  366 ;  Davis 
V.  Barr,  9  S.  &  R.  137;  Taylor  v. 
Gitt,  10  Barr,  431 ;  Mott  v.  Clark,  9 
Id.  403;  M'Connell  v.  Wenrich,  4 
Harris,  365 ;  Moore  v.  Ilolcomhe,  3 
Leigh,  597;  M' Blair  v.  Gihhs,  17 
Howard,  232;  and  The  Ohio  Life 
Ins.  Co.  V.  Ross,  2  Maryland  Ch. 
25,  39 ;  which  contain  declarations, 
that  the  assignee  of  a  debt,  or  chose 
in  action,  is  not  liable  to  the  latent 
equities  of  third  persons,  which  he  had 
no  means  of  discovering  at  the  time 
of  parting  with  his  money,  and  taking 
the  assignment.  But,  on  careful  ex- 
amination, most  of  these  cases  will  be 
found  to  depend  on  some  special  fixct 
or  circumstance,  which  constituted 
an  exception  to  the  general  rule ; 
or,  to  be  mere  appplications  of  tlic 
well  established  principle,  th.it  the 
assignment  of  a  debt  or  obligation 
is  subject  to  the  equity  of  the  debt- 
or, or  obligor,  or,  more  correctly,  to 
his  legal  right  to  take  advantage  of 
every  defence  which  would  have  been 


good  against  the  assignor,  and  which 
has  not  been  acquired,  or  set  up  in  fraud 
of  the  rights  of  the  assignee,  after  no- 
tice has  been  given  of  their  existence  ; 
Rider  v.  Johnson,  8  Harris,  190. 
Thus,  in  M' Connell  v.  Wenrich,  and 
Moore  V.  Ilolcomhe,  the  assignment  of 
the  bond  was  legal,  not  equitable,  and 
therefore  fell  without  the  rule  which 
govei-ns  the  assignment  of  equities, 
and  within  the  protection  given  to 
the  purchaser  of  the  legal  title,  while 
Taylor  v.  Gett  depends  on  the  fami- 
liar principle,  that  transactions  void- 
able only,  cannot  be  avoided  after  the 
rights  of  third  persons  have  interven- 
ed, and  been  based  upon  them.  The 
case  of  The  Ohio  Life  Ins.  Co.  v. 
Ross,  approaches  much  more  nearly 
to  the  point  in  question  ;  for,  although 
the  demand  assigned  was  secured  by 
a  mortgage,  yet,  the  assignment  was 
merely  of  the  debt,  and  did  not  pass 
the  legal  title  to  the  land.  But  this 
decision  cannot  be  allowed  to  counter- 
act the  weight  of  authority  and  prin- 
ciple, which  sustains  the  proposition, 
that  the  right  acquired  by  the  pur- 
chase of  a  chose  in  action,  cannot  rise 
higher  than  that  held  by  the  seller, 
at  the  time  of  the  sale. 

The  rule  which  limits  the  right  of 
the  buyer  by  that  of  the  seller,  and 
subjects  the  title  of  the  one  to  every 
drawback  or  defect,  which  attached  to 
that  of  the  other,  is  the  general  rule, 
both  of  law  and  of  reason ;  the  favor 
shown  by  equity,  to  the  purchaser  of 
a  real  or  pretended  legal  title,  merely 
an  exception,  and  those  who  seek  to 
escape  from  the  consequences  of  the 
rule,  must  bring  themselves  within 
the  exception.  And  the  truth  would 
seem  to  lie  between  the  opposite  er- 
rors   of    holding    that    the   purchase 


BASSET     V.      N  0  S  W  0  R  T  H  Y. 


81 


of  an  equity  can  give  a  better  right 
or  title  tlian  that  of  the  seller,  and 
viewing  it  as  a  cause  for  duubt  or  suspi- 
cion, which  affects  him  with  notice  of 
more  than  he  actually  knows,  and  may 
preclude  the  right  to  use  a  collateral 
legal  right  or  title,  for  the  protection 
of  the  purchaser.  The  ciuestion  was 
reviewed  in  Mai/hin  v.  Kirhij,  4  Rich- 
ardson's J]quity,  and  Judsori  v.  Cor- 
coran, 17  Howard,  502,  ante ;  and 
the  superiority  of  a  prior  equity,  over 
interests  acquired  by  a  subsequent 
purchase,  said  to  be  undeniable, 
when  a  chose  in  action  is  in  question, 
vinless  the  purchaser  has  acquired 
some  legal  advantage,  or  the  holder  of 
the  equity  been  guilty  of  laches,  which 
vitiate  his  title,  or  deprive  him  of  the 
riffht  to  enforce  it  asrainst  others  who 
have  been  more  diligent.  A  similar 
view  was  taken,  in  Cockcll  v.  Taylor, 
15  English  Law  and  Equity,  101,  and 
pushed  to  the  extent  of  holding,  that 
an  assignment  procvired  by  fraud,  may 
be  set  aside,  as  against  an  innocent 
purchaser,  from  the  assignee ;  al- 
though the  better  opinion  would  seem 
to  be,  that  the  general  principle  under 
which  transactions  vitiated  by  fraud 
are  voidable  only,  and  cannot  be 
avoided  to  the  prejudice  of  the  in- 
tervening rights  of  third  persons,  ap- 
plies with  as  much  force  to  the  trans- 
fer of  a  chose  in  action,  as  to  that  of 
chattels  personal  j  Taylor  v.  Gett,  10 
Barr,  428. 

The  general  rule  with  reference  to 
equitable  assignments,  and  assign- 
ments of  equities,  may  therefore  be 
said  to  be,  that  when  an  equity  is 
binding  on  the  assignor,  and  unless  it 
is  binding  it  cannot  be  an  equity, 
those  who  buy  from  him  subsequent- 
ly will  necessarily  be  bound  in   the 

VOL.  ir. — 6 


same  manner,  and  can  acquire  no 
greater  or  better  right  than  he  had  to 
sell  or  part  with.  When,  therefore, 
the  assignment  or  transfer  of  a  chose 
in  action  is  in  question,  priority  in 
point  of  time,  will  give  superiority 
of  right,  unless  there  are  some  special 
circumstances  other  than  good  faith, 
and  the  payment  of  value,  to  justify 
or  require  a  different  conclusion; 
Mayhin  v.  Kirhy,  4  Richardson's  Eq. 
105;  Judson  V.  Corcoran,  17  Howard, 
012;  Bradley  v.  Root,  5  Paige,  682  ; 
Cochell  V.  Taylor,  15  English  Law 
and  Equity,  101;  Taylor  v.  Bates, 
5  Cowen,  376;  Mair  v.  8chenck,  3 
Hill,  228. 

It  has  been  held  in  New  York, 
that  as  in  the  contemplation  of  equi- 
ty, the  mortgage  debt  is  the  princi- 
pal, and  the  mortgage  a  mere  acces- 
sary, the  assignment  of  a  mortgage  is 
to  be  regarded  in  the  same  light  as 
that  of  a  mere  chose  in  action,  and 
that  the  assignee,  consequently,  can- 
not rest  his  defence  on  the  ground 
of  a  hona  fide  purchase,  even  when 
he  is  the  holder  of  the  legal  title 
under  the  mortgage ;  Van  Rennse- 
laer  v.  Stafford,  Hopkins,  569 ;  9 
,  Cowen,  316.  Thus,  in  Poillon  v.  Mar- 
tin, 1  Sandford,  Ch.  569,  a  mortgagee 
who  had  been  induced  to  sell  his  mort- 
gage for  uncurreut  bank-notes,  to  a 
clerk  in  the  office  of  his  attorney,  was 
allowed  to  recover  not  merely  as  against 
the  immediate  parties  to  the  transac- 
tion, but  as  against  a  subsequent  pur- 
chaser under  them,  in  good  faith,  and 
for  a  valuable  consideration.  This 
view  is  sustained  by  the  case  of  Whal- 
ley  V.  Whalley,  1  Vernon,  484 ;  5 
Bacon's  Abridgment,  76;  and  by  the 
opinion  of  Mr.  Powell;  (2  Powell  on 
Mortgages,  601;)  but  would  seem  to 


82 


BONA     FIDE     PURCHASERS. 


be  a  departure  from  the  doctrines  of 
English  equity,  under  which  the  legal 
estate  passed  by  a  mortgage,  will  serve 
to  protect  the  claims  of  every  bona  fide 
purchaser  to  whom  it  may  be  assigned, 
whether  his  purchase  be  of  an  inter- 
est in  the  same  mortgage,  or  in  one 
of    subsequent    creation ;    Coote   on 
Mortgages,  375;  Donhy  v.  Hai/x,  17 
Sergeant  &  Rawle,  408 ;  Peacock  v. 
Burt,   Sugden   on  A'^endors,    vol.   3, 
page  292,  pi.  8;  ante,  vol.  1,  597. 
A  mortgage  is  something  more  than 
a  mere  debt,  attended  by  a  lien  for  its 
payment;  it  operates  as  a  conveyance 
both  at  law  and  in  equity,  which,  in 
this,  as  in  other  things,  follows  the 
law;    Conard  v.    The  Atlantic  Ins. 
Co.,  1  Peters,  344,  441 ;  and  hence, 
the   assignee  of  a  mortgage   should 
occupy  the  position,  and  have  all  the 
rights  of  a  purchaser,   whenever  he 
has   bought   in    good  faith,  and  for 
value.     The  rule  was  thus  stated,  in 
M'Farland  v.   Griffiths,  4  W.  C.  C. 
R.  585,  although  there  would  seem 
to  have  been  an  error  in  applying  it 
to  the  equity  of  redemption,  which  is 
necessarily  attendant  on  every  mort- 
gage, and  consequently  follows  it  into 
the  hands  of  the  assignee,  who  can- 
not plead  that  he  is  a  purchaser  with- 
out notice,  of  that  which  he  knows  must 
exist  in  one  form  or  other,  and  who  con- 
sequently ought  to  make  inquiries  of 
the  mortgagor,  which  will  compel  the 
latter  to  reveal  the  truth,  or  preclude 
himself  by  silence;    Clute  v.  Rohin- 
son,  2  Johnson,  595.     But  this  argu- 
ment docs   not   apply  to    the    latent 
equities  of  third  persons,  which  there 
are  no  means  of  knowing,  unless  they 
are   disclosed    through    some  of  the 
modes  of  notice.     And  there  would, 
consequently,  seem  to  be  much    rea- 


son for  holding  that  the  assignment 
of  a  mortgage,  by  -a  deed  duly  exe- 
cuted, and,  when  necessary,  recorded, 
should  have  a  priority  over  prior 
claimants,  whose  equity  arises  out  of 
a  mere  appropriation,  or  transfer  of 
the  debt  without,  or  apart  from,  the 
title  to  the  land,  except  in  so  far  as  the 
one  is  equitably  incident  to  the  other. 
Under  these  circumstances,  the  case 
falls  directly  within  the  rule  laid 
down  by  the  Supreme  Court  of  the 
United  States,  in  Judson  v.  Corcoran, 
ante,  that  the  possession  of  a  legal  ad- 
vantage may  supply  the  want  of  a  full 
legal  title. 

The  better  opinion  would,  conse- 
quently, seem  to  be,  that  the  assignee 
of  a  mortgage  is  not  subject  to  equi- 
ties, in  favor  of  third  persons, 
although  binding  on  the  assignor  at 
the  time  of  assignment ;  Livingston 
V.  Dean,  2  Johnson's  Ch.  479 ;  Mott 
V.  Clark,  9  Barr,  399 ;  and  the  rule 
should  obviously  be  the  same,  when  a 
second  assignment  is  taken  without 
notice  of  equities  growing  out  of  the 
first;  Clcotte  v.  Gaqnicr,  2  Michigan, 
381.  And  as  the  effect  of  the  de- 
cision in  Polllon  v.  Martin,  must  be 
to  impair  the  marketable  value  of 
mortgages,  by  subjecting  them  to 
secret  equities  created  by  the  mort- 
gagee, and  interposing  an  obstacle  to 
their  assignment,  it  may  be  doubted 
whether  it  stands  better  in  point  of 
practical  advantage  than  of  principle. 
In  order,  however,  to  entitle  the 
purchaser  of  a  mortgage,  to  rely  on  the 
advantage  given  by  the  possession  of 
the  legal  title  to  the  land,  as  a  defence 
against  a  prior  equity,  the  assignment 
under  which  he  claims  should  he  legal, 
and  if  it  be  not,  he  will  fall  directly 
within  the  maxim,  which,  as  between 


BASSET     V.     NOSWORTHY. 


83 


equal  equities,  gives  superiority  to 
that  which  is  prior  in  point  of  time. 
The  point  was  held  differently  in  The 
Ohio  Life  Ins.  Co.  v.  Ross,  2  Mary- 
land Chancery,  25;  but  the  decision 
would  seem  to  have  been  founded  on 
the  erroneous  idea,  that  the  purchaser 
of  a  chose  in  action  takes  it  free  from 
antecedent  equities,  and  not  upon 
principles  peculiar  to  the  assignment 
of  mortgages;  ante,  80.  And  whatever 
doubt  may  exist,  when  the  prior  as- 
signee of  a  mortgage  has  used  due 
diligence,  there  can  be  none  when  he 
has  been  guilty  of  ladies,  which, 
have  resulted  in  injury  to  subsequent 
purchasers. 

In  Mott  V.  Clarh,  the  morto-ao-ee 
had  notice  at  the  time  of  taking  the 
mortgage,  that  the  mortgagor  was  a 
mere  trustee  for  the  defendant,  and 
the  question  was,  whether  the  subse- 
quent assignment  of  the  mortgage  for 
valuable  consideration  and  without  no- 
tice, invested  the  assignee  with  the 
rights  of  a  purchaser,  and  entitled  him 
to  a  recovery  on  it  against  the  defend- 
ant. Anditwasheldbythe  court,  that 
although  a  mortgage  might  be  so  far 
considered  as  a  mere  chose  in  action,  or 
security  for  the  debt,  as  to  be  subject  to 
the  equities  between  the  mortgagor 
and  mortgagee,  against  which  the  as- 
signee might  protect  himself  by  mak- 
ing inquiry  of  the  former  at  the  time 
of  the  assignment,  yet  that  with  re- 
gard to  the  equities  of  third  persons  the 
case  was  different,  and  an  assignment 
for  value  was  to  be  regarded  as  a  pur- 
chase; and  it  was  consequently  de- 
cided, that  the  mortgage  was  good  in 
the  hands  of  the  assignee,  not  only 
against  the  equity  of  the  defendant, 
which  had  bound  it  in  those  of  the  as- 
signor, but  against  a  deed  from  the 


mortgagor  to  the  defendant,  which  the 
latter  had  neglected  to  jiut  on  record. 
In  delivering  the  opinion  of  the  court 
on  this  occasion,  Rogers,  J.,  held  the 
following  language:  ''The  fact  of  no- 
tice was  properly  left  by  the  court  to 
the  jury,  who  found  that  the  mort- 
gagee had  notice.  But,  in  answer, 
the  plaintiff  contends  that  admitting 
this  to  be  so,  he  is  an  assignee  with- 
out notice,  and  however  it  may  be  as 
between  the  mortgagee  and  third  per- 
sons, he  takes  the  property  discharged 
of  all  equities  of  which  he  had  no 
knowledge.  The  question,  therefore, 
is  (granting  he  had  no  notice,  which 
is  undoubted,)  does  the  assignee  stand 
in  the  same  or  a  better  position  than 
the  mortgagee  ?  On  this  point  the 
court  instructed  the  jury,  that  the  as- 
signment of  a  mortgage  is  not  so  with- 
in the  recording  acts,  as  to  give  the 
assignee  protection  against  an  unre- 
corded deed,  of  which  the  mortiraa'ee 
had  full  notice.  That  a  mort";ao;ee  is 
a  purchaser  within  the  statute  of 
frauds  is  ruled  in  Lancaster  v.  Dolan, 
1  Rawle,  ,245,  on  the  authority  of 
Chapman  v.  Emery,  Cowp.  278. 
Now  it  has  been  repeatedly  ruled,  that 
although  a  purchaser  has  notice  of  an 
equitable  claim,  by  which  his  con- 
science is  affected,  yet  a  person  pur- 
chasing from  him  hona  fide,  and  with- 
out notice  of  the  right,  will  not  be 
bound  by  it.  So  a  person  having  no- 
tice of  an  equitable  claim  may  safely 
purchase  of  a  person  who  bought  hona 
fide  and  without  notice.  These  posi- 
tions are  elementary,  and  are  fully  sus- 
tained by  the  authorities  cited.  If, 
therefore,  a  mortgagee  is  to  be  con- 
sidered on  the  footing  of  a  purchaser, 
it  would  seem  to  follow  that  an  as- 
signee without  notice  takes  the  pro- 


84 


BONA     FIDE     rURCHASERS. 


perty  discharged  of  a  latent  equity,  if 
any  existed.     These  cases,  although 
analogous,  are  not  expressly  in  point, 
but  the  case  of  an  assignee  of  a  bond 
and   mortgage    is    expressly  ruled  in 
LivhujsUm  V.  Dean,  2  J.  C  R.  479. 
He  takes  it  subject  to  all  the  'equity 
of  the  mortgagor,  but  not  to  the  latent 
equity  of  a  third  person.     To  subject 
him  to  such  an  equity,  he  must  have 
express  or  constructive  notice  at  the 
time  of  the  assignment.     It  is  a  gen- 
eral and  well  settled   principle,  says 
the  chancellor,  in  Murray  v.  Lylhurri, 
2  J.  C.  R.  443,  that  the  assignee  of  a 
chose  in  action  takes  it  subject  to  the 
same  equity  it  was  subject  to  in  the 
■hands  of  the  assignee:  2  Vern.  691- 
7G.5 ;  1  P.  Wms.  497 ;  1  Ves.  122  ; 
4  Yes.  118.     But  this  rule  is  gener- 
ally understood  to  mean   the  equity 
residing    in    the    original    obligor   or 
debtor,  and  not  an  equity  residing  in 
some  third  person  against  the  assignor. 
He  takes  it  subject  to  all  the  equity 
of  the  obligor,  say  the  judges  in  the 
very  elaborately  argued  case  of  Morton 
V.  Rose,  2  "Wash.  233,  on  this  very 
point,  touching  the  rights  of  the  as- 
signee of  a  bond.     The  assignee  can 
always  go  to  the  debtor  and  ascertain 
what  claims  he  may  have  against  the 
bond  or  other  chose  in  action,  which 
he  is  about  purchasing  from  the  obli- 
gor; but  he  may  not  bo  able,  with  the 
utmost    diligence,    to    ascertain    the 
latent  equity  of  some   third   person 
against  the  obligee.     He  has  not  any 
object  to  which  he  can  direct  his  in- 
(juirics,  and  for  this  reason  'the  claim 
of  the  assignee,  without  notice  of  a 
chose  in  action,  in   the   late   case  of 
Redfearn  v.  Ferrier,  1  Dow,  50,  was 
preferred  to  that  of  a  party  setting  up 
a  secret  equity  against  the  assignor. 


Lord  Eldon  observed,  in  that  case, 
that  if  it  were  not  to  be  so,  no  assign- 
ment could  ever  be  taken  with  safety. 
It  would  be  utterly  impossible  to 
guard  against  combination  by  the 
mortgagor  and  mortgagee,  particularly 
with  the  aid  of  the  owner  of  the  latent 
equity.  If  the  defendant,  the  owner 
as  he  alleges  of  the  moiety,  loses  his 
property,  it  is  his  own  laches,  for  it 
was  his  duty  to  put  his  deed  on  record 
as  notice  of  his  title.  Having  ne- 
glected his  duty  he  is  postponed  to 
the  mortgagee,  who  is  a  purchaser 
within  the  Statute  of  Frauds.  At  law 
his  title  is  available  against  the  owner, 
who  neglected  to  put  his  deed  on 
record.  The  assignee  stands  in  the 
position  of  the  mortgagee  so  far  as  re- 
gards the  legal  title,  but  stands  as  the 
authorities  evidently  show,  unaffected 
with  an  equity  of  which  he  had  uo 
knowledge  or  possibility  of  knowledge, 
and  against  which  it  would  be  impos- 
sible for  him,  with  the  most  careful 
diligence,  to  guard  himself.  If  he 
had  notice  of  the  outstanding  equity, 
he  would  be  in  the  same  position  as 
the  mortgagee,  and  equity  in  such  case 
would  relieve  the  owner  of  the  estate, 
notwithstanding  his  neglect.  The 
principle  on  which  courts  of  equity 
act,  is  that  actual  notice  is  equivalent 
to  constructive  notice  derived  from 
the  registry  of  the  deed.  The  inten- 
tion of  the  acts  requiring  deeds  to  be 
recorded,  was  to  secure  subsequent 
purchasers  and  mortgagees  against 
prior  secret  conveyances  and  fraudu- 
lent encumbrances;  and  therefore 
when  a  person  has  notice  of  a  prior 
conveyance,  it  is  not  a  secret  convey- 
ance by  which  he  can  be  prejudiced ; 
for  he  can  be  in  no  danger  where  he 
knows  of  another   encumbrance,  be- 


BASSET     V.     NOSWORTHY. 


85 


cause  then  he  might  have  stopped  his 
hand  from  proceeding,  and  therefore 
is  not  the  person  whom  the  statute 
meant  to  relieve.  The  Court  of  Chan- 
cery affords  relief,  because  it  is  against 
equity  for  him  to  protect  himself  by 
his  legal  title  when  he  had  express 
notice  of  a  prior  conveyance  or  encum- 
brance. But  it  is  evident  this  must 
be  personal  to  the  mortgagee,  and 
cannot  aff'ect  his  innocent  assignee." 
This  case  was  cited  with  approbation 
in  Philips  V.  The  Bank  of  Lewistown, 
6  Harris,  394,  403,  where  the  court 
said  that  a  mortgagee  is  a  purchaser, 
and  that  his  assignee,  Avithout  notice, 
would  take  free  from  the  equities  of 
third  persons.  The  same  view  was 
taken  in  Connecticut  v.  Bradish,  14 
Mass.  206,  and  the  assignment  of  a 
mortgage  by  a  deed  duly  recorded, 
held  to  give  the  assignee  the  rights  of 
a  purchaser  for  value,  and  entitle  him 
to  protection  against  an  unrecorded 
conveyance,  which  had  been  made 
known  to  the  mortgagee  at  the  time 
when  the  mortgage  was  executed,  and 
would,  consequently,  have  been  en- 
titled to  priority  but  for  the  subse- 
quent assignment. 

It  is  well  settled  in  England,  in  the 
case  of  choses  in  action,  that  notice  to 
a  trustee,  will  give  a  purchaser  from 
the  cestui  que  trust,  priority  over  an 
antecedent  purchaser  who  has  omitted 
to  give  notice ;  Sugden  on  Vendors, 
vol.  8,  ch.  22,  sect.  1,  pi.  41.  But  this 
rule  is  limited  to  personal  and  does  not 
apply  to  real  estate ;  Sug.  on  Vend.  lb. 
pi.  46;  Jones  v.  Jones,  8  Simons,  633. 
For  even  if  notice  of  an  equity,  to  the 
holder  of  the  legal  title,  could  render 
him  a  trustee  for  the  party  giving  the 
notice,  still  it  would  not  bind  the  con- 
science of  a   subsequent   purchaser, 


unless  brought  home  to  him  at  the 
time  of  the  purchase.  A  violation  of 
duty  on  the  part  of  a  trustee,  only 
aff"ects  those  who  are  cognizant  of  its 
commission.  And  this  reasoning  has 
led  most  of  the  courts  of  this  country 
to  reject  the  whole  doctrine,  both  as  it 
regards  real  estate  and'choses  in  action  ; 
see  note  to  Row  v.  Dawson,  j^osi, 
part  2d. 

The  acquisition  of  title  to  chat- 
tels personal,  is  governed,  in  general, 
by  the  same  maxim  which  has  been 
so  often  cited  as  reoulatin";  the  traus- 
fer  of  rights  of  property  from  hand  to 
hand,  and  a  purchaser,  consequently, 
cannot  rely  on  his  own  good  faith,  and 
the  payment  of  value  in  reliance  upon 
the  possession  and  apparent  owner- 
ship of  a  vendor,  who  has  sold  with- 
out title,  as  a  bar  to  the  claim  of  the 
true  owner;  M^  Comhie  v.  Davis,  6 
East,  538;  7  Id.  5;  Everett  v.  Saltus, 
15  Wend.  475;  20  Id.  265;  Agneic 
V.  Johnston,  10  Harris,  471 ;  Coggill 
V.  The  Hartford  and  JVeio  Haven 
Railroad  Co.,  3  Gray,  545 ;  Brower 
V.  Peahody,  3  Kernan,  121 ;  1  Smith's 
Leading  Cases,  893,  5th  American 
ed.  :  and  in  Agnew  v.  Johnston,  and 
Coggill  V.  Hartford  &  New  Haven 
Railroad  Co.,  this  principle  was  car- 
ried to  the  extent  of  deciding  that 
when  a  sale  is  conditional,  a  subse- 
quent purchaser  will  take  subject  to 
the  condition,  although  unknown  to 
him  at  the  time  of  the  purchase.  But 
it  is  as  true  in  this  case,  as  in  those 
which  have  already  been  considered, 
that  a  claimant,  who  has  been  guilty 
of  laches,  will  be  postponed  to  those 
who  have  been  misled  or  prejudiced 
by  his  neglect ;  D^er  v.  Pearson,  3 
B.  &  C.  38 ;  Davies  v.  Bradley,  24 
Vermont,  55;  Dejpeio  v.  Rohards,  17 


86 


BONA     FIDE     PURCHASERS. 


Missouri,  580;  Carinicliael  v.  Beclc, 
10  Richardson,  332;  PicTcering  v. 
Bush,  15  East,  38;  Kei/ser  v.  Har- 
heck,  3  Duer,  373 ;  and  that  a  subse- 
quent purchaser  will  be  entitled  to 
rely  on  the  legal  title  or  any  collateral 
legal  advantage,  as  a  protection  against 
a  prior  equity,  of  which  he  was  igno- 
rant at  the  time  of  the  purchase; 
Clemson  v.  Davidson,  5  Binney,  392; 
Albert  V.  The  Saving  Bank,  1  Mary- 
land Ch.  407.  There  can  consequent- 
ly be  no  doubt,  that  a  bo7ia  fide  pur- 
chase of  a  chattel  from  a  trustee  will 
be  valid,  both  at  law  and  in  equity, 
against  the  cestui  que  trust ;  Eaves  v. 
Gillispie,  1  Swan,  128. 

It  has  been  said  in  a  number  of 
instances,  that  a  purchase  for  valu- 
able consideration,  can  only  be  relied 
on  by  way  of  defence  and  protection, 
and  cannot  be  made  the  ground  of 
a  suit  or  recovery.  The  point  was 
so  held  by  the  New  York  Court  of 
Errors,  in  Bechnan  v.  Frost,  18  John- 
son, 544,  reversing  the  decision  of  the 
chancellor  in  the  court  below ;  Frost 
V.  Beekman,  1  Johnson's  Chancery, 
288,  and  dismissing  the  bill,  on  the 
ground  that  as  the  equity  of  the  com- 
plainant consisted  in  a  purchase  for 
v*lue  and  without  notice,  it  did  not 
entitle  him  to  come  forward  as  an  actor, 
although  it  would  have  been  available 
for  his  defence,  if  attacked.  It  was, 
consequently,  decided,  that  the  com- 
plainant, who  applied  for  relief  as  a 
bona  fide  purchaser  for  value,  against 
a  prior  mortgage  given  by  the  vendor, 
which  had  been  entered  by  "mistake 
on  the  registry,  as  made  for  much 
less  than  its  real  value,  was  not  en- 
titled to  an  injunction  to  prevent  the 
defendant  from  proceeding  to  a  sale  of 
the  estate,  under  a  power  contained  in 


the  mortgage.  The  same  doctrine  was 
asserted  in  the  subsequent  case  of 
Jackson  V.  Cadicell,  1  Cowen,  622, 
and  it  is  supported  by  the  decisions  in 
some  of  the  other  States  of  the  Union. 
The  position  taken  by  the  Court  of 
Errors,  in  Beekman  v.  Frost,  may  be 
entirely  sound,  but  requires  to  be  ap- 
plied with  some  discrimination.  There 
can  be  no  doubt,  that  a  defence  rest- 
ing on  the  ground  of  a  purchase  for 
valuable  consideration,  as  technically 
made  by  plea,  which  does  not  allege 
the  existence  of  a  good  title  in  the 
vendor,  and  which,  as  remarked  by 
Lord  Eldon,  implies  a  want  of  title  in 
the  vendee,  {ante.  Go,)  cannot  in  itself 
furnish  a  ground  for  a  suit  or  action, 
either  in  a  court  of  equity  or  of  law. 
Such  a  defence  shows  matter  suffici- 
ent to  exonerate  the  conscience  of  the 
purchaser,  and  entitle  him  to  retain 
what  he  has  purchased,  but  does  not 
necessarily,  or  usually,  show  enough 
to  bind  the  conscience  of  others,  and 
become  the  foundation  of  equitable 
proceedings  against  them.  But  it 
would  be  going  too  far  to  assert,  that 
a  bona  fide  purchase  for  value,  can  iu 
no  case  give  a  claim  to  equitable  re- 
lief, or  that  it  may  not  in  some  cases 
be  an  ingredient  in  the  creation  of  a 
legal  title.  Thus,  where  an  agree- 
ment is  entered  into  for  the  sale  of 
land,  the  right  of  the  vendee  grows 
oiit  of  purchase,  but  there  is  no  ques- 
tion as  to  his  right  to  come  into  equi- 
ty, not  only  against  the  vendor,  but 
against  all  parties  claiming  under  him 
with  notice,  for  the  purpose  of  com- 
pelling a  conveyance  of  the  legal  es- 
tate. And  nothing  is  better  settled, 
than  the  right  of  a  Z(o??a /(Repurchaser 
for  value,  to  have  recourse  to  equity 
in  aid  of  the  defective  execution  of  a 


BASSET     V.     NOSWORTHY. 


87 


power;   Rolert's  Heirs  v.  Stanton,  2 
Muaford,  129.     The  rule  tliat  a  hona 
fide  purchase  gives  no  right  to  relief, 
must,  therefore,  be  taken  with  the  im- 
plied   qualification,    that   it   gives   a 
right  only  in  those  cases,  where  the 
circumstances  are  such  as  to  bind  the 
conscience  of  the  defendant,  and  not 
merely  to  discharge  that  of  the  com- 
plainant.    On  applying  these  princi- 
ples to  the  case  of  Beckman  v.  Frost, 
it  would  appear,   that   as   under  the 
provisions  of  the    Recording  Act  of 
New  York,  the  imperfectly-recorded 
mortgage  of  the  defendant,  could  not 
defeat  a  bo7ia  fide  purchase  by  the 
complainant,    the   allegations   of  the 
latter  that  he  had  purchased  in  good 
faith  and  without  notice,  were  to  be 
considered   as    showing    not   a  mere 
equity,  but  a  legal  title  to   the  pro- 
perty purchased,  which  he  might  have 
enforced  through  the  medium  of  legal 
proceedings.     On  the  other  hand,  it 
appeared  from  the  pleadings,  that  the 
defendant  was  a  bona  fide  purchaser 
for  value,  under  his  mortgage,  unless 
his  right  to  claim  in  that  character, 
was  avoided  by  the  failure  to  have  it 
properly  recorded.     And  the  question 
would,  therefore,  seem  to  have  been 
as  to  the  right  of  a  party  having  the 
legal  title  unaffected  by  any  equity, 
to  relief  against  another  claiming  as 
a  bona  fide  purchaser  for  value,  under 
an   invalid   conveyance.      No   relief 
could  have  been  afforded  against  the 
latter,  had  the  case  depended  on  the 
general  rule  of  equity,  considered  in 
this  note.     But  the  chancellor  seems 
to  have  been  of  opinion  that  as  the  re- 
cording acts  expressly  declared,  that 
no  unrecorded  mortgage  should   de- 
feat or    prejudice    a   bona  fide   pur- 
chase without  notice,  the   defendant 


could  not  entitle  himself  under  such 
a  mortgage,  as  purchaser  against  the 
complainant,    who    was    within    the 
protection  of  the  act,  and,  therefore, 
entitled  to  the  relief  prayed  for  in  the 
bill.      And    the   only   error   of   this 
reasoning  would  seem  to  have  been, 
that  the  case  made  by  the  complain- 
ant was  equally  valid  at  law  and  in 
equity,  and  consequently  afforded  no 
sufficient  ground  for  a  resort  to  the 
latter  jurisdiction,  although  the  relief 
which  it  afforded  might  be  more  com- 
plete  or  effectual  than    could  easily 
have  been  obtained  in  a  court  of  law. 
It  is  sufficiently  obvious,  that  when 
a  question  arises  as  between  two  par- 
ties claiming  as  purchasers  for  valu- 
able consideration,  and  there  is  nothing 
to  give  one  a  superiority  over  the  other, 
the  title  of  the  defendant  to  protec- 
tion, is  as  good  as  that  of  the  plaintiff 
to  relief,  and  that  the  former  is  with- 
out the  jurisdiction  of  a  court  of  equi- 
ty,  even  if   the  latter    has    brought 
himself  within  it.     But  the  equality 
of    right    existing    as   between    two 
purchasers,  will  be  varied,  not  only 
where  one   has   succeeded  in  getting 
the  legal  estate,  but  where  he  has  the 
best  right  to  get  it  j  Coleman  v.  Cooke, 
6  Rand.  618.     Thus,  in  WinouffJ^bi/ 
V.  Willouglibi/,  1  Term  R.  701,  where 
a  bill  was  filed  by  a  prior  equitable 
encumbrancer  against  another  of  later 
date,  it  was  held,  that  if  both  encum- 
brances had  been  bona  fide,  the  first 
would  have  been  preferred  only  so  far 
as  an  outstanding  term  was  held  in 
trust  for  his  protection,  and  as  to  the 
residue,  would  have  been  postponed 
to  the  second,  who  was  protected  by 
a  subsequent  assignment  of  the  term, 
but  that  as  the  second  encumbrancer 
had  notice  of  the  trust  at  the  time  of 


88 


BONA     FIDE     PURCHASERS. 


procuring  the  assignment,  he  could 
not  set  it  up  to  defeat  the  claim  of  the 
first.  So,  in  Williamson  v.  Gordon's 
Ex'rs,  5  Munford,  257,  where  pro- 
perty which  had  been  conveyed  in 
trust  for  the  payment  of  debts,  leaving 
a  resulting  equity  in  the  grantor,  was 
subsequently  sold  by  him  to  the  plain- 
tiff, who  applied  the  purchase-money 
in  discharge  of  the  trust,  subject 
to  an  agreement  with  the  trustee 
for  a  conveyance,  this  agreement, 
though  not  fulfilled,  was  held  to  give 
the  purchaser  a  better  right  to  the 
legal  title,  than  that  of  the  holder  of 
an  intermediate  equity,  for  which  no- 
thing had  been  actually  paid,  and 
which  had  grown  up  between  the  date 
of  the  original  deed  of  trust,  and  that 
of  the  sale  to  the  plaintiff.  A  similar 
opinion  was  expressed  in  The  Mutual 
Assurance  Society  v.  Stone,  3  Leigh, 
218,  although  the  circumstances  were 
not  such  as  to  admit  of  its  application 
in  practice. 

In  this  case,  however,  the  court 
pushed  the  doctrine,  to  the  extent  of 
asserting,  as  a  general  proposition, 
that  the  right  of  the  holder  of  a 
prior  equity,  to  a  conveyance  of  the 
legal  title,  is  superior  to  that  of  the 
holiJer  of  a  junior  equity  on  the  mere 
ground  of  priority,  and  will  debar  the 
latter  from  taking  such  a  conveyance, 
after  notice,  for  his  own  protection. 
But  tlic  language  thus  held,  must  be 
confined  to  those  cases  where  the 
holder  of  the  subsequent  equity  hav- 
ing bought  with  knowledge  that  his 
acquisition  fell  short  of  the  legal  title, 
or  with  notice  of  the  antecedent  rights 
of  others,  is  not  a  honn  fulc  purchaser 
for  value,  in  the  full  and  technical 
sense  of  the  term,  and  would  other- 
wise be  at  variance  with   the  wliole 


course  of  equity  in  England,  which 
even  when  proceeding  to  enforce  the 
right  of  a  prior  mortgagee,  through  the 
medium  of  a  suit,  for  a  sale  or  fore- 
closure, which  if  brought  to  a  conclu- 
sion would  destroy  the  claims  of  sub- 
sequent encumbrancers,  will  allow  the 
latter  to  protect  themselves  at  the  last 
moment  before  decree,  by  taking  a 
conveyance  of  an  outstanding  legal 
title  ;  Marsh  v.  Lee,  2  Ventris,  337, 
ante,  vol.  1,  594.  And  although  it  has 
been  said  by  Lord  Hardwicke,  and 
repeated  by  Mr.  Sugden,  that  if  the 
purchaser  has  not  the  first  and  best 
right  to  the  legal  estate,  he  cannot 
avail  himself  of  an  assignment  of  it 
for  his  benefit,  this  unquestionably 
refers  to  his  right  at  the  time  of  the 
purchase,  apart  from  any  notice  which 
he  may  have  had  subsequently,  and 
does  not  mean  that  where  two  equities 
of  different  dates  are  in  other  respects 
equal,  the  younger  will  not  be  pro- 
tected by  obtaining  an  assignment  of 
the  legal  estate  after  notice  of  the 
elder.  This  is  manifest  from  the  case 
in  which  Lord  Hardwicke's  dictum 
occurs,  where  the  reason  why  the 
junior  encumbrancer  was  not  allowed 
to  avail  himself  of  the  assignment  of 
an  outstanding  term,  to  a  trustee  for 
his  benefit,  was,  that  at  the  time  of 
taking  his  mortgage,  he  knew  that  the 
term  was  held  in  trust  for  the  purpose 
of  a  marriage  settlement,  under  which 
the  senior  encumbrancer  had  a  right 
of  jointure,  although  he  did  not  know 
that  she  was  also  entitled  as  mort- 
gagee under  a  mortgage  prior  to  his 
own.  And  it  was  decided  that  his 
knowledge,  at  the  time  of  becoming  a 
purchaser,  of  her  right  to  a  convey- 
a)icc  of  the  term  for  the  protection  of 
her  jointure,   invalidated   the    right, 


BASSET     V.     NOSWORTHY. 


89 


which  he  would  otherwise  have  ac- 
quired, by  its  assio-nment  for  the  pro- 
tection of  his  mortgage ;  WiUonghhj/ 
w.Willoughhy,  1  Term,  730  j  Sugdea 
on  Vendors,  vol.  3,  82,  84,  85,  pi. 
ii4,  27,  28.  The  case,  therefore,  was 
simply  that  of  a  mortgagee,  with  no- 
tice of  a  prior  mortgage,  and  a  term 
assigned  to  protect  it,  who  would  not 
be  allowed  to  protect  himself  in  Eng- 
land, by  taking  an  assignment  of  the 
term,  even  as  against  an  intermediate 
mortgage  between  the  same  parties, 
of  which  he  had  no  notice.  Such  at 
least  would  be  the  case,  if  the  term 
were  held  in  trust  for  the  protection 
of  the  first  mortgage,  although  it 
seems  doubtful  whether  a  covenant, 
by  a  trustee,  to  hold  the  legal  estate 
for  the  benefit  of  a  particular  encum- 
brancer, will  have  the  effect  of  creat- 
ing such  a  trust  in  favor  of  the  latter, 
as  to  entitle  him  to  protection  for  a 
subsequent  advance  against  an  inter- 
vening encumbrancer,  because  the 
equities  of  both  parties  are  equal, 
and  neither  has  the  law ;  Frere  v. 
Moore,  8  Price,  475.  There  can, 
therefore,  be  little  doubt,  that  the 
purchaser  of  an  equity,  may  protect 
himself  by  obtaining  a  conveyance  of 
the  legal  estate,  where  there  is  no 
breach  of  trust,  notwithstanding  no- 
tice of  a  prior  equity,  given  before  the 
conveyance  but  after  the  purchase ; 
Campbell  v.  Brackenridge,  8  Black- 
ford, 471 ;  Giblerv.  Trimhle,  14  Ohio, 
423;  Osborn  v.  Carr,  12  Conn.  195, 
208.  This  is  clearly  shown  by  the 
dicta  in  Brace  v.  Marlborough,  2  P. 
Wms.  491,  {ante,  vol.  1,  598 ;)  Siter  v. 
MCIcuachan,  2  Grattan,  280,  293; 
Osborn  V.  Carr,  12  Conn.  195,  208, 
as  well  as  by  the  ease  of  Belchicr  v. 
Butler,  1  Eden,  523,  where  the  holder 


of  an  equitable  lien  growing  out  of  the 
advance  of  money  upon  a  third  mort- 
gage, in  ignorance  of  the  existence  of 
two  prior  mortgages  which  had  previ- 
ously been  made  to  different  persons, 
was  allowed  to  obtain  a  priority  over  the 
second  mortgage  by  buying  in  the  first, 
with  full  notice  of  the  second.  The 
same  view  was  taken  in  the  cases  of 
BagarhjY.  Gaifher,2  Jones,  Eq.  80, 
and  Carroll  Y.  Johnston,  Ih.  120,  which 
decide  that  the  right  acquired  by  a 
bona  fide  purchase,  is  not  lessened  by 
the  subsequent  disclosure  of  facts 
which  were  vinknown  at  the  time  of 
the  purchase,  and  that  a  purchaser 
may  consequently  protect  himself  by 
obtaining  a  conveyance  of  the  legal 
title,  after  he  has  been  made  acquaint- 
ed with  the  existence  of  prior  equities, 
and  for  the  purpose  of  obtaining  a 
priority  over  them. 

In  a  dictum  attributed  to  Lord  Chan- 
cellor Cowper,  22  Viner's  Abr.  p.  21, 
pi.  5,  it  is  said,  that  equity  will  not 
compel  a  trustee  either  to  act  for  his 
cestui  que  trtist,  or  to  give  the  latter 
the  means  of  acting  for  himself,  in 
cases  where  the  ultimate  effect  of  such 
action  would  be  the  dispossession  of  a 
purchaser  for  value,  without  notice. 
But,  although  this  allegation  is  ia 
some  degree  supported  by  the  manner 
in  which  it  is  cited  by  Sugden,  in  his 
treatise  on  Vendors,  vol.  3,  p.  424, 
pi.  17,  it  would  hardly  be  followed  at 
the  present  day.  The  peculiar  privi- 
lege of  purchasers  in  equity,  depends 
on  there  being  nothing  to  charge  their 
conscience,  and  cannot  therefore  ex- 
tend to  acquit  the  consciences  of  third 
persons.  Thus  equity  will  not  give 
any  assistance  to  one  mortgagee  in  a 
suit  brought  directly  against  another, 
though  of  later  date,  where  both  are 


90 


BONA     FIDE     PURCHASERS. 


purchasers  for  value  and  without  no- 
tice. But  when  such  a  mortgagee 
files  his  bill  for  foreclosure,  and  set- 
tlement of  priorities  against  the  mort- 
gagor, equity  will  not  deny  him  re- 
lief, though  the  efi'ect  must  be  the 
conversion  of  the  land  into  money, 
and  the  payment  of  the  whole  fund 
to  himself,  to  the  exclusion  of  subse- 
quent encumbrancers,  fully  entitled  as 
purchasers  without  notice,  and  for 
valuable  consideration. 

It  is  well  settled,  on  the  one  hand, 
that  notice  given  at  any  time  before 
the  completion  of  a  purchase,  will  in- 
validate all  steps  which  may  be  taken 
to  complete  it ;  Murray  v.  Fluster,  2 
Johnson's  Ch.  R.  155  ;  Frost  v.  Beek- 
man,  1  Id.  288 ;  Wormier/  v.  Worm- 
ley,  8  Wheaton,  421 ;  Beck  v.  Uhrich, 
1  Harris,  G36 ;  and  on  the  other,  that 
when  it  is  once  completed,  and  the 
character  of  a  bona  fide  purchaser  ac- 
quired, notice  will  not  be  a  bar  to  any 
future  steps,  necessary  for  protecting 
and  securing  what  has  been  purchased. 
One  who  buys  an  equitable  title  or  en- 
cumbrance, in  ignorance  of  its  nature, 
and  under  the  belief  that  he  is  getting 
a  good  legal  title,  may,  therefore,  pro- 
tect himself,  by  getting  in  the  legal 
title,  even  where  the  effect  is  wholly 
to  exclude  equities  prior  to  his  own ; 
Bngurly  v.  Gaither,  2  Jones,  Eq. 
80  ;  Carroll  v.  Johnston,  lb.  120  j 
Boone  V.  Chilles,  10  Peters,  177. 
Thus,  it  is  well  settled  in  England, 
that  an  assignment  of  the  legal  estate, 
whether  in  the  form  of  a  mortgage,  or 
an  outstanding  term,  to  the  holder  of 
an  equitable  mortgage,  or  to  a  trustee 
for  his  benefit,  will  give  him  a  pre- 
ference over  previous  equitable  mort- 
gages or  encumbrances,  of  which  he 
had  no  notice  at  the  time  of  obtaining 


his  mortgage;   Marsh  y.  Lee,  2  Ven- 
tris,  337  ;    Wilhughhy  v.  Willoiighhy, 
1  Term  Heps.  763 ;  Sugden  on  Ven- 
dors, vol.  3,  p.  83.     This  doctrine, 
which    is    commonly   known   as   the 
doctrine  of  tacking,  can  have  no  ap- 
plication in  this  country,   unless    as 
between  mortgages,  neither  of  which 
is  recorded,  for  where  a  prior  mort- 
gage is  of  record,  junior  encumbrances 
are  held  to  have  notice  of  its  exist- 
ence, and  when  it  is  not,  it  will  be 
postponed  under  the  operation  of  the 
recording  acts,  to  any  other  which  is ; 
ante,  vol.  1,  597,  notes  to  3IarshY.  Lee. 
But  when  a  question  arises  as  between 
two  equitable  titles,  neither  of  which 
is  of  record,  there  would  seem  no  suf- 
ficient reason  why  the  English  doc- 
trine should  not    prevail    here,  and 
give  the  party  who  has  acquired  the 
legal    estate,    preference    over   prior 
equities.      It  would  seem,  however, 
that  a  bona  fide  purchaser  will  not  be 
allowed  to  obtain  a  preference  through 
the  medium  of  a  wrong,  or  to  profit 
by  a  breach  of  trust,  to  which  he  is  a 
party.     A  purchaser  without  notice, 
cannot,  therefore,  protect  his  purchase 
by  taking  a  conveyance  of  the  legal 
estate  from  a  trustee,  with  a  knowledge 
that  he  is  violating  the  duties  of  his 
office,    in   making    the   conveyance ; 
Saunders  v.  Dehew,  2  Vernon,  271. 
This  decision  is  obviously  dictated  by  a 
sounder  equity  than  that  which  pre- 
vailed in  those  cases,  in  which  the 
wrongful  or  fraudulent  acts  of  the  pur- 
chaser, have  been  allowed  to  enure  for 
his  protection;  ante,  53.     Thus,  there 
seems  to  be  no  reason  why  an  inefiec- 
tual,  or,  even  unjustifiable  attempt  to 
acquire  a  further  interest,  should  be 
held  to  prejudice  any  prior  interest, 
which  would  be  good  in  itself,  if  such 


BASFET     V.     NOSWORTHY. 


91 


attempt  had  not  been  made;  and  it 
was  accordingly  held  in  Coxy.  Oshurn^ 
1  A.  K.  Marsh.  311,  that  impeach- 
ing a  grant  on  the  ground  of  notice, 
would  not  defeat  a  prior  equity,  held 
by  the  grantee.  But  where  an  assign- 
ment of  the  legal  estate  is  procured 
from  a  trustee  by  a  purchaser,  with 
notice  of  the  trust,  for  the  protection 
of  a  cotemporaneous  purchase,  it  can- 
not be  used  to  the  prejudice  of  the 
cestui  que  trust,  even  in  points  as  to 
which  the  purchaser  had  no  notice ; 
Wllloughhy  V.  Willoughhi/,  1  Term  R. 
761,  764. 

Although  a  defence  resting  on  the 
ground  of  a  purchase  for  a  valuable 
consideration,  without  notice,  is  so 
potent  in  its  operation,  it  is,  notwith- 
standing, surrounded  by  restrictions, 
which  are  intended  to  prevent  it  from 
defeating  the  purpose  in  which  it  ori- 
ginated, and  becorainga  cloak  forfraud 
and  negligence,  instead  of  an  incen- 
tive to  diligence,  and  a  protection  to 
good  faith  and  fair  dealing.  These 
restrictions  prevail  with  full  force  in 
England,  at  the  present  day,  but  there 
is  some  doubt  as  to  whether  they  are 
all  equally  applicable  in  this  country. 
Yet  the  cases  are  numerous  in  which 
they  have  been  recognized  or  adopted, 
as  integral  parts  of  our  equitable  sys- 
tem. Among  these,  is  that  of  Snel- 
grove  v.  Snelgrove,  4  Dessaussure, 
274,  where  they  were  stated  with  con- 
siderable accuracy,  as  follows. 

''From  the  decided  cases  these  re- 
quisites seem  to  be  indispensable  to 
support  a  plea,  that  the  defendant  is 
a  purchaser  for  valuable  consideration, 
without  notice.  In  the  first  place,  it 
must  be  sworn  to ;  Sugden,  507 ;  3Iar- 
shall  V.  Frank,  8  Pre.  Cha.  480.  If 
the   defendant    answer   to    anything 


which  he  should  plead,  he  overrules 
his  plea,  though  he  may  answer  any- 
thing in  subsidium  of  his  plea;  1  Ans. 
14;  Blachet  v.  Langlands,  Sel.  C.  C. 
51 ;  Gilb.  58.  The  plea  must  state 
the  deeds  of  purchase,  setting  forth 
the  dates,  parties  and  contents,  briefly, 
and  the  time  of  their  execution,  for 
that  is  the  peremptory  matter  in  bar ; 
3  Atk.  302 ;  Wahvyn  v.  Lee,  9  Ve- 
sey,  jr.  24.  Such  a  plea  must  aver 
that  the  person  who  conveyed  or  mort- 
gaged to  the  defendant,  was  seised  in 
fee,  or  pretended  to  be  seised ;  and 
was  in  possession,  if  the  conveyance 
purported  an  immediate  transfer  of 
the  possession,  at  the  time  when  he 
executed  the  purchase  or  mortgage 
deed;  2  Atkins,  397;  lb.  631;  Story 
V.  Lord  Windsor,  3  P.  Wms.  279, 
281;  Head  v.  Egerton,  1  Vern.  246; 
Trevanian  v.  Morse,  3  Vesey,  jr. 
226;  lb.  32;  Ambler,  421. 

The  plea  must  aver  a  conveyance 
and  not  articles  merely;  for  if  there 
are  articles  only,  and  the  defendant 
should  be  injured,  he  may  sue  at  law 
upon  the  covenant  in  the  articles ;  3 
P.  Wms.  281 ;  1  Atkins,  571. 

The  plea  must  distinctly  aver  that 
the  consideration-money  mentioned 
in  the  deed,  was  bona  fide  and  truly 
paid,  independently  of  the  recital  of 
the"purchase  deed ;  for,  if  the  money 
be  not  paid,  the  plea  will  be  overruled 
as  the  purchaser  is  entitled  to  relief 
against  payment  of  it.  A  considera- 
tion secured  to  be  paid,  is  not  suffi- 
cient ;  2  Atk.  241 ;  3  Atk.  304,  814. 
It  is  doubted  if  the  particular  consi- 
deration, need  be  stated  in  the  plea. 
The  cases  have  been  contrary;  2 
Freem.  43;2C.  C.  156;1C.  C.  34; 
Hard.  510. 

But  if  it  be  stated,  there  can  be  no 


92 


BONA     FIDE     PURCHASERS. 


objection  to  it,  for  if  it  be  hona  fide 
and  valuable  it  need  not  be  adequate 
to  support  the  purchase  and  the  plea; 
Ambler,  7G3,  7G7;  Finch,  102.  The 
plea  must  also  deny  notice  of  the  plain- 
tiff's title  or  claim,  previous  to  the 
execution  of  the  deeds,  and  payment 
of  the  consideration-money.  And  the 
notice  so  denied,  must  be  of  the  exist- 
ence of  the  plaintiff's  title,  and  not 
merely  of  the  person  who  could  claim 
under  such  title ;  1  Vern.  179  ;  2  Atk. 
G31 ;  3  Id.  304 ;  2  Eq.  C.  685 ;  1  Atk. 
522,  which  overruled  Brampton  v. 
Banher,  Wilson's  Oh.  R.  125;  2 
Yern.  159;  3  P.  Wms.  243. 

The  notice  must  be  positively  and 
not  evasively  denied,  and  must  be  de- 
nied, whether  charged  in  the  bill  or 
not;  2  P]q.  C.  Abr.'682 ;  3  P.  Wms. 
244  ;  6  Resolutions  in  2  P.  Wms.  491. 

If  particular  instances  of  notice,  or 
circumstances  of  fraud  are  charged, 
they  must  be  denied  as  specially  as 
charged;  3  Atk.  815;  2  Vesey,  jr. 
187 ;  4  Bro.  C.  C.  322 ;  2  Vesey,  430. 
The  special  and  particular  denial  of 
notice  or  fraud,  must  be  by  way  of 
answer,  that  the  plaintiff  may  be  at 
liberty  to  except  to  it  for  insufficiency ; 
1  Vern.  185;  2  C.  C.  161. 

But  notice  and  fraud  must  also  be 
denied  in  the  plea;  otherwise,  the  fact 
of  notice  or  fraud  will  not  be  in  issue; 
3  P.  Wms.  91,  95  ;  Meadows  v.  The 
Duchess  of  Kingston,  Mit.  277,  n. ;  5 
Vesey,  jr.  426. 

"The  title  of  a  purchaser  for  valu- 
able consideration  without  notice,  is 
not  a  sword  to  attack  the  possessioh  of 
others;  Amb.  292;  3  Vesey,  jr.  225. 
It  is  a  shield  to  defend  the  possession 
of  a  purchaser.  Whether  it  will  pro- 
tect his  possession  from  a  legal  as  well 
as  an  equitable  title  may  be  said  to  be 


doubtful.     The  cases  have  been  con- 
tradictory on  this  point. 

"  In  Rogers  and  Searl,  2  Freeman, 
84,  Lord  Nottingham  had  been  of 
opinion  that  the  plea  was  not  good 
against  a  legal  estate.  And  in  Wil- 
liams V.  Lamhe,  Lord  Thurlow  says 
expressly,  that  he  thought  where  a 
party  (complainant)  is  pursuing  a 
legal  title,  the  plea  did  not  apply,  it 
being  a  bar  only  to  an  equitable  and 
not  to  a  legal  claim  ;  3  Bro.  C.  C.  264. 
On  the  other  hand,  in  Burlace  v. 
Cook,  Lord  Nottingham  was  of  opin- 
ion that  the  plea  was  good  to  protect 
a  purchaser  against  a  complainant 
seeking  to  set  up  a  legal  estate ;  2 
Free.  24.  And  in  Parker  v.  Blyth- 
more,  the  Master  of  the  Rolls  threw 
out  the  same  opinion,  though  he  did 
not  consider  it  necessary  to  decide  it, 
as  he  thought  the  plea  maintainable 
on  other  grounds;  2  Eq.  C.  Ahx.  79  ; 
Pla.  1.  And  in  Jerand  v.  Saunders, 
Lord  Rosslyn  decreed  that  the  plea 
would  stand  against  a  legal,  as  well  as 
an  equitable  title ;  2  Vesey,  jr.  454. 

"  It  is  evident  that  this  doctrine 
remains  unsettled,  for  it  docs  not  ap- 
pear that  the  cases  have  ever  been 
collated,  sifted,  and  a  final  conclusion 
drawn  from  such  comparison.  It  is 
obvious  from  an  inspection  of  the 
cases  generally,  that  in  most  of  them 
where  the  plea  has  been  supported,  it 
has  been  against  an  equitable  and  not 
a  legal  title. 

*'  Mr.  Sugden,  in  his  judicious 
collection  of  the  doctrine  and  autho- 
rities upon  this  subject,  says,  '  that 
to  argue  from  principle,  it  seems 
clear,  that  the  plea  is  a  protection 
against  a  legal  as  well  as  an  equitable 
claim ;  and  as  the  authorities  in  favor 
of  that  doctrine  certainly  preponde- 


BASSET     V.     NOSWORTHT. 


93 


rate,  we  may  perhaps  venture  to  assert 
that  it  will  protect  against  both.' 

"  I  am  not  entirely  satisfied  that 
this  is  a  correct  conclusion.  The  in- 
clination of  my  mind  is  the  other  way. 
It  should  be  remembered  that  the  plea 
protects,  by  the  court  refusing  to  aid 
the  complainant  in  setting  up  a  title. 
Now  when  the  title  attempted  to  be 
set  up  is  an  equitable  one,  it  seems 
very  reasonable  that  the  court  should 
forbear  to  give  its  assistance  in  setting 
up  such  equitable  title  against  another 
title  set  up  by  a  fair  purchaser.  But 
when  the  complainant  comes  with  a 
legal  title,  I  do  not  perceive  how  he 
can  be  refused  the  aid  of  the  court. 
It  seems  no  longer  to  be  optional. 
As  there  is,  however,  so  much  con- 
tradiction and  doubt,  I  could  wish 
this  point  would  be  carried  up  to  the 
Court  of  Appeals,  in  any  case  where 
it  fairly  arose,  and  was  the  very  point 
decided. 

"  To  apply  all  that  has  been  said  to 
the  point  under  consideration,  it  is 
obvious,  that  if  through  indulgence, 
which  I  am  willing  to  do,  we  should 
admit  the  answer  of  the  purchasers  to 
stand  for  a  plea ;  that  the  answer  does 
not  comply  with  the  various  regula- 
tions which  we  have  seen  from  the 
authorities  must  be  pursued.  The 
answers  have  not  set  forth  the  dates, 
parties  and  contents  of  the  deeds  of 
purchase,  nor  especially  the  time  of 
their  execution,  which  is  essential. 
The  answers  have  not  set  forth  that 
the  person  from  whom  the  defendants 
purchased  was  seised  in  fee,  and  was 
in  possession,  nor  even  from  whom  he 
purchased.  The  defendants  have  not 
set  forth  what  kind  of  deeds  they  had, 
whether  absolute  conveyances,  or  only 
articles  or  agreements  to  convey,  in 


which  last  case  the  plea  would  not 
protect.  The  answer  has  not  stated 
that  the  consideration-money  was  bona 
Jidc,  truly  and  actually  paid,  which  is 
essential  to  support  the  plea.  The 
answer  has  not  denied  so  explicitly  as 
it  should  do,  (though  it  has  done  so 
generally,)  notice  of  the  plaintiff's 
claim,  or  of  the  existence  of  his  title. 
And  finally  the  title  of  the  complain- 
ant attempted  to  be  resisted  by  the 
defendant's  answer,  (meant  and  con- 
sidered to  stand  in  the  place  of  the 
plea,)  is  a  legal  and  not  an  equitable 
one.  On  all  these  grounds,  I  am  of 
opinion  that  the  purchasers  from  Wil- 
liam Snelgrove  cannot  be  protected  as 
purchasers  for  valuable  consideration 
without  notice,  and  bringing  them- 
selves within  the  rules  necessary  to 
give  effect  to  that  defence." 

A  similar  unqualified  recognition 
of  the  English  doctrine  on  this  sub- 
ject as  prevailing  among  us,  will  be 
found  supported  by  names  of  great 
authority,  in  the  eases  of  Alexander 
V.  Pendleton,  8  Cranch,  462 ;  Boone 
V.  Chilles,  10  Peters,  177;  Hunter  v. 
Sumrall,  6  Littell,  22  ;  Blir/ht's  Heirs 
V.  Banks,  6  Monroe,  698 ;  Halstead 
V.  The  Bank  of  Kentuclct/,  4  J.  J. 
Marshall,  554 ;  Moore  v.  Clai/,  7  Ala- 
bama, 142 ;  Btcsh  V.  Bush,  3  Strob- 
hart's  Equity,  131 ;  Nantz  v.  M'Pher- 
son,  7  Munford,  599 ;  Pilloiv's  Heirs 
V.  Shannon's  Heirs,  3  Yerger,  308. 
But  there  are  other  decisions  of  equal 
weight,  in  which  some  of  the  requi- 
sites held  essential,  in  England,  to  a 
defence,  resting  on  the  ground  of  a 
bona  fide  purchase  for  value,  have 
been  treated  as  inapplicable  to  the 
state  of  aifairs  in  this  country,  and 
have  either  been  relaxed  in  strin- 
gency, or  wholly  disregarded.    It  will, 


94 


BONA     FIDE     PURCHASERS. 


therefore,  be  necessary  to  cousider 
each  of  these  requisites  by  itself,  be- 
fore proceeding  to  a  consideration  of 
the  eifect  of  the  defence,  which  they 
constitute  when  united,  and  of  the 
manner  in  which  it  must  be  made 
and  sustained  in  pleading  and  evi- 
dence. 

The  first  and  one  of  the  most  im- 
portant requisites  of  such  a  defence, 
in  England,  is  that  which  concerns 
the  estate  of  the  vendor,  and  it  is  also 
one  of  those  which  has  occasioned  most 
discussion  in  the  United  States.  Un- 
der the  English  anthorities,  which 
have  been  cited  and  followed  in  a  num- 
ber of  cases  in  this  country,  it  is  neces- 
sary to  aver,  that  the  purchaser  was 
seised,  or  pretended  to  be  seised,  of 
an  estate  in  fee  simple  in  the  premi- 
ses purchased,  free  from  incumbran- 
ces, and  that  the  defendant  believed 
that  the  title  was  such  as  it  was  thus 
represented;  and  it  must  also  be  aver- 
ed,  that  the  vendor  was  in  actual 
possession,  unless  the  estate  sold  pur- 
ports to  be  one  in  reversion  ;  Tomj)- 
Jcins  v.  Anthon,  4  Sandford's  Ch.  97  ; 
Baynard  v.  Norris,  5  Gill,  408.  The 
policy  and  propriety  of  this  requisition 
cannot  be  doubted,  so  far  as  it  merely 
seeks  to  test  the  good  faith  of  the 
purchaser,  by  requiring  an  averment, 
that  the  title  purchased  appeared  to 
be  good,  and  that  it  was  purchased 
under  a  belief  that  it  was  what  it  ap- 
peared ;  for  positive  good  faith  is  es- 
sential to  the  validity  of  such  a  de- 
fence, as  well  as  freedom  from  absolute 
or  legal  fraud,  and  the  purchaser  ii'iust 
swear  to  his  belief,  that  the  vendor 
had  a  good  title,  as  well  as  to  the  ab- 
sence of  actual  or  constructive  notice, 
that  he  had  a  bad  one.  And  the  aver- 
ment of  pretensions,  true  or  false,  to 


such  a  title  on  his  part,  and  of  belief 
in  their  truth  on  that  of  the  vendee, 
must  be  of  such  pretensions  as  if  not 
true,  might  produce  an  impression  of 
their  truth ;  and  of  a  belief  founded 
on  evidence  sufficient  to  induce  it,  and 
not  upon  appearances  and  allegations, 
which  reasonable  diligence  and  inquiry 
would  have  shown  to  be  false  or  fraud- 
ulent; Dillard  v.  Crocker,  1   Spear, 
Eq.  20.     Thus  it  was  held  in  Vattier  v. 
Hinde,  7  Peters,  252,  271,  that  where 
a  purchase  was  made  under  an  execu- 
tion against  a  party,  who  had  no  docu- 
mentary title  whatever  to  the  estate 
purchased,  the  purchaser  was  not  en- 
titled   to    the    protection    of   equity, 
which  could  only  be  afforded  where  a 
vendee  had  been  deceived  by  such  a 
semblance  of  title,  as  to  justify  a  be- 
lief in  its  reality.     And  where  the  bill 
set  forth  a  settlement  on  a  husband 
and  wife  for  their  lives,  remainder  as 
they  or  the  survivor  of  them  should 
appoint,  the  death  of  the  husband,  an 
appointment   by   the   widow   to   the 
plaintiff,  her  second  marriage,  and  an 
entry  by  the  heir  of  the  second  hus- 
band, with  a  prayer  for  relief  against 
him,  and  he  pleaded  a  settlement  by 
the  widow  on   the   second  husband, 
under  representations  on  her  part,  and 
a  belief  on  his,  that  she  was  seised  in 
fee,  it  was  held  by  the  Vice-Chancel- 
lor,  that  as  it  appeared  from  the  bill, 
that  proper  inquiries  on  the  part  of  the 
second   husband,  would  have  shown 
that  the  wife  had  nothing  more  than 
a  life  estate  under  the  original  sctt,le- 
ment,  there  was  a  failure  to  exercise 
that  care  and  diligence  which  are  es- 
sential to  the  character  of  a  hona  fide 
purchaser,  although  it  was  admitted 
that  the  case  would  have  been  differ- 
ent, had  there  been  an  apparent  fee 


BASSET     V.     NOSWORTHY. 


95 


simple  iu  her,  wliich  had  been  de- 
feated by  some  act  on  her  part,  or  on 
that  of  those  through  whom  she  claim- 
ed ;  Jackson  v.  Roioe,  2  Simon  &  Stu- 
art, 472.  There  may  be  some  doubt, 
■wl^ether  the  point  was  properly  de- 
cided as  one  of  pleading,  and  the  chan- 
cellor, who  declined  to  express  any 
opinion  upon  it  when  the  case  subse- 
quently came  before  him,  affirmed  the 
decision  on  other  grounds ;  4  Russel, 
514;  but  there  can  be  none  as  to  the 
soundness  of  the  general  principle, 
that  where  the  vendor  is  wholly  desti- 
tute of  the  ordinary  evidences  and 
muniments  of  title,  and  his  preten- 
tions to  a  good  title  rests  solely  on 
possession,  the  purchaser  will  not  be 
justified  in  believing  their  validity, 
unless  fraudulent  means  are  employed 
to  deceive  him,  which  he  could  not 
detect  by  the  exercise  of  ordinary  dili- 
gence; Jones  V.  Poivics,  3  Mylne  & 
Keene,  581. 

But  the  English  doctrine  as  above 
stated,  does  not  merely  require  that 
the  vendor  should  have  a  title  appa- 
rently good  in  itself,  and  of  such  a 
nature  as  to  be  susceptible  of  transfer 
to  other  persons,  but  it  also  requires 
that  this  title  should  be  or  appear  to 
be  a  seisin  in  fee,  thus  shutting  out 
equitable  estates,  even  as  it  would  seem 
when  the  trust  is  executed,  and  the 
absolute  beneficial  interest  vested  in 
the  cestui  que  trust,  or  when,  as  iu 
the  case  of  a  mortgagor,  the  equity  is 
of  such  a  nature,  as  to  be  for  most 
purposes  equivalent  to  the  legal  fee. 
The  reason  of  this  distinction  between 
the  purchase  of  a  legal  and  equitable 
interest,  seems  to  be,  that  the  protec- 
tion accorded  to  ir>/?ay?c?e  purchasers, 
is  a  departure  from  the  general  rule 
of  jurisprudence^  which  holds  that  no 


man  can  transfer  a  greater  right  than 
he  possesses,  and  regards  the  vendee 
as  standing  in  the  same  position  as 
the  vendor  under  whom  he  claims. 
This  exception  was  made  by  equity, 
against  the  rights  and  remedies  which 
it  had  called  into  being,  and  in  favor 
of  purchasers,  who  bought  in  good 
faith,  and  vinder  the  impression  that 
they  were  acquiring  a  good  legal  title, 
and  seems  to  have  been  prompted  by 
the  wish  to  prevent  its  peculiar  powers 
of  chancery  from  bearing  oppressive- 
ly on  those  who  had  done  nothing  to 
render  themselves  amenable  to  its 
jurisdiction.  But  when  the  purchase 
is  of  a  mere  equity,  which  owes  its  ex- 
istence to  the  Court  of  Chancery,  and 
cannot  be  enforced  without  its  assist- 
ance, the  reason  for  departing  from 
the  general  maxim,  nemo  plus  Juris 
in  alium  transferre  potest,  quam  ipse 
hahet,  is  at  an  end,  and  the  right 
acquired  by  the  vendee  under  the  sale 
is  necessarily  limited  to  that  of  the 
vendor.  In  other  words,  equity  deals 
with  the  purchaser  of  an  equitable 
title,  as  the  law  deals  with  the  pur- 
chaser of  a  legal  title,  and  regards  the 
purchase  as  incapable  either  of  defeat- 
ing rights  or  creating  them  ;  Parsons 
V.  Jury,  1  Yerger,  296 ;  Gallion  v. 
3PCasIin,  1  Blackford,  91;  Jones  v. 
Jones,  8  Simons,  633,  642  ;  Maries  v. 
Cooper,  22  Mississippi,  208  ;  Broicn 
V.  Wood,  6  Richardson's  Equity,  155  ; 
Daniel  v.  Ilollingshead,  16  Georgia, 
190.  When,  therefore,  a  purchaser 
buys  an  equitable  estate  or  interest, 
with  a  knowledge  of  its  real  charac- 
ter, and  without  obtaining  the  legal 
title,  he  can  found  no  claim  on  the 
mere  fact  of  the  purchase,  and  must 
stand  or  fall  by  the  title  of  the  ven- 
dor. 


96 


BONA     FIDE     PURCHASERS. 


The  English  doctrine  on  this  sub- 
ject was,  as  we  have  seen,  adopted  in 
Snehjrove  v.  Snelyrove,  and  it  has 
been  followed  in  a  number  of  other 
cases  of  great  authority.  Thus  it  was 
declared  in  the  most  unequivocal  man- 
ner, by  Marshall,  C.  J.,  in  Shirras  v. 
Craig,  7  Cranch,  34,  48,  that  the  pur- 
chaser of  an  equitable  title  takes  it 
subject  to  all  existing  equities,  and 
he  relied  on  this  doctrine  in  the  sub- 
sequent cape  of  Vattier  v.  Hinde,  7 
Peters,  252,  as  a  reason  for  refusing 
to  protect  the  defendant  as  a  hona  fide 
purchaser  for  value.  A  real  or  pre- 
tended legal  title  in  the  vendor,  was 
also  treated  as  essential  to  give  the 
vendee  a  right  to  protection,  by  Bald- 
win, J.,  in  Boone  v.  ChUles,  10  Peters, 
177,  where  all  the  requisites  which  are 
necessary,  in  England,  for  the  support 
of  this  mode  of  defence,  were  laid 
down  as  prevailing  equally  in  the 
courts  of  this  country.  And  although 
an  equitable  estate  in  land  is  regarded, 
in  Pennsylvania,  as  the  substance  and 
the  legal  title  as  a  mere  shadow,  yet, 
the  pui'chaser  of  a  mere  equity,  can- 
not, as  such,  and  when  the  recording 
acts  do  not  intervene,  claim  protection 
on  the  ground  of  bona  fides,  and  the 
payment  of  a  valuable  consideration. 
Thus  it  was  said  by  Gribson,  C.  J.,  in 
the  course  of  the  able  opinion  deliv- 
ered by  him,  in  CJmo  v.  Barnctt,  12 
S.  &  R.  389,  that  when  it  is  asserted, 
"  that  a  purchaser  for  valuable  consi- 
deration takes  the  title,  free  of  every 
trust  or  equity,  of  which  he  has  no 
notice,  it  is  intended  of  the  purchase 
of  a  title  perfect  on  its  face,  for  every 
purchaser  of  an  imperfect  title,  takes 
it  with  all  its  imperfection  on  its  head. 
It  is  his  own  fault,  that  he  confides  in 
a  title  wliicli  appears  defective  to  his 


own  eyes,  and  he  does  so  at  his  own 
peril.  Now  every  equitable  title  is 
incomplete  on  its  face.  It  is  in  truth 
nothing  more  than  a  title  to  go  into 
chancery  to  have  the  legal  estate  con- 
veyed, and  therefore,  every  purchaser 
of  a  mere  equity  takes  it  subject  to 
every  clog  that  may  lie  on  it,  whether 
he  has  had  notice  or  not.  But  the 
purchaser  of  a  legal  title,  takes  it  dis- 
charged of  every  trust  or  equity  which 
does  not  appear  on  the  face  of  the  con- 
veyance, and  of  which  he  has  not 
had  notice,  either  actual  or  construc- 
tive." The  language  thus  held,  when 
taken  with  the  implied  qualification, 
that  it  is  immaterial  whether  the  title 
purchased  be  legal  or  equitable,  if  the 
vendee  suppose  it  to  be  legal,  would 
seem  to  express  the  true  rule  on  this 
subject,  and  is  sustained  by  that  of 
Kennedy,  J.,  in  Reed  v.  Dickei/,  2 
Watts,  459,  and  by  the  subsequent 
cases  of  Kramer  v.  Arthurs^,  7  Barr, 
165,  and  Sergeant  v.  Ingersoll,  lb. 
340 ;  3  Harris,  343. 

But  while  these  cases  are  in  point 
to  show  that  the  general  principle, 
which  puts  the  purchaser  of  an  equit- 
able estate  on  the  same  footing  in 
equity,  as  the  purchaser  of  a  legal 
estate  at  law,  and  makes  him  subject 
to  all  the  imperfections  of  the  title  of 
his  vendor,  prevails  with  us  as  well  as 
in  England,  they  are  not  sufficient,  to 
define  and  ascertain  its  limits  and  ap- 
plication, under  our  system  of  regis- 
tration and  conveyancing.  There  can, 
however,  be  little  doubt  that  it  is  re- 
strained and  controlled  in' its  opera- 
tion, by  the  recording  acts  of  this 
country,  M'liich  render  unrecorded 
deeds  or  instruments,  creating  or  con- 
veying a  right  or  title  to  land,  void 
as  against  subsecjucnt  bona  fide  pur- 


BASSET     V.     NOSWORTHY. 


97 


chasers.  It  necessarily  follows,  that 
the  purchaser  of  an  equity  by  deed 
duly  recorded,  is  entitled  to  a  prefe- 
rence over  prior  equities,  growing  out 
of  the  previous  acts  or  agreements  of 
the  vendor,  which  have  not  been 
placed  on  record ;  The  Ohio  Life  Ins. 
Go.  V.  Ross,  2  Maryland  Ch.  25; 
The  United  States  Insurance  Co.  v. 
Shriver,  3  Id.  383  ;  Correj/  v.  Caxfon, 
4  Binney,  140.  The  law  was  held 
the  same  way  in  Bellas  v.  JSICarty, 
10  Watts,  13,  where  it  was  decided, 
that  the  purchaser  of  an  equitable 
estate,  arising  under  articles  of  agree- 
ment, took  a  good  title,  as  against  a 
prior  grantee  of  the  same  estate,  whose 
deed  had  not  been  duly  recorded. 
This  principle,  however,  is  only  ap- 
plicable where  the  question  arises  be- 
tween a  recorded  and  an  unrecorded 
equity ;  for  when  neither  is  placed  on 
record,  the  purchase  will  fall  directly 
within  the  general  maxim  under 
which  the  title  of  a  buyer  is  limited 
to,  and  measured  by,  that  of  the  sel- 
ler, and  will  be  subject  to  all  antece- 
dent and  derivative  equities,  which 
have  come  into  being  before  the  pur- 
chase. 

It  has,  moreover,  been  held,  that  a 
failure  to  record  the  grant  of  an  equity, 
may  be  made  good  by  taking  a  duly 
recorded  conveyance  of  the  legal  title 
from  which  it  was  originally  derived, 
because  a  subsequent  purchaser  of  the 
equity  will  be  bound  to  trace  it  up  to 
its  origin,  and  learn  what  has  become  of 
the  legal  estate  of  which  it  was  the  off- 
shoot, and  to  which  it  has  again  re- 
turned, thus  losing  its  identity  and 
becoming  drowned  or  extinguished ) 
Correy  v.  Caxton,  4  Binney,  40  ;  Bel- 
las V.  mOavty,  10  Watts,  93. 

In  the  subsequent  case  of  Kramer 

VOL.  II. — 7 


V.  Arthurs,  7  Barr,  165  ;  a7ite,  vol.  1, 
255,  the  controversy  had  its  origin  in 
the  conveyance  of  an  estate  arising 
under  articles  of  agreement  which 
had  cot  been  placed  on  record,  to 
one  Havens,  who  acted  as  manager 
of  an  incorporated  land  company,  of 
which  he  was  a  member.  Havens 
had  previously  executed  an  unrecord- 
ed declaration  of  trust  as  to  all  such 
lands,  by  which  he  bound  himself  to 
hold  them  for  the  purposes  of  the  com- 
pany, and  among  others  for  that  of 
sale  and  division  of  the  net  proceeds 
among  its  members  ;  and  he  proceeded 
to  carry  this  trust  into  effect,  by  sell- 
ing the  land  to  the  defendant,  and 
causing  him  to  take  a  conveyance  of 
the  legal  estate  from  the  original  ven- 
dor, who  had  hitherto  retained  it  in 
his  own  hands.  Prior  to  this  sale 
and  conveyance,  but  subsequently  to 
the  declaration  of  trust  in  favor  of  the 
company,  a  judgment  was  obtained 
against  Havens,  under  which  his  in- 
terest in  the  land  in  question  was  sub- 
sequently sold,  and  conveyed  to  the 
plaintiif  in  the  judgment.  The  con- 
test, therefore,  lay  between  the  title 
passed  by  this  sale,  and  that  arising 
under  the  prior  sale  by  Havens  to  the 
defendant,  supported  by  the  convey- 
ance of  the  legal  title  from  the  origi- 
nal vendor ;  and  the  case  would  hardly 
have  admitted  of  an  argument,  had 
not  the  defendant  been  affected  with 
notice  of  Haven's  equity  at  the  time 
of  the  conveyance,  which  raised  the 
question  whether  it  was  bound  by  the 
judgment  against  Havens,  and  whe- 
ther the  purchaser  under  the  judg- 
ment was  bound  by  the  unrecorded 
declaration  of  trust,  which  preceded 
the  judgment.  Both  points  were 
embarrassed  by  difficulties ;   but  the 


98 


BONA     FIDE     PURCHASERS. 


better  opinion  would  seem  to  be,  that 
the  declaration  of  trust  would  have 
been  rendered  invalid  by  the  failure 
to  record  it,  had  it  not  been  the  duty 
of  the  purchaser  to  trace  the  equity 
back  to  the  original  vendor,  for  the 
purpose  of  learning  what  had  become 
of  the  outstanding  legal  title  ;  Carrey 
V.  Caxton,  4  Binney,  140 ;  Bellas  v. 
M  Carty,  10  Watts,  13,  27  ;  when  an 
examination  of  the  record  would  have 
shown,  that  it  had  passed  into  the 
hands  of  the  plaintiff,  and  that  the 
buyer  at  the  sheriff's  sale,  must  ne- 
cessarily be  subject  to  his  prior  title. 
This  would  have  reduced  the  case  to 
the  question,  whether  that  title  was 
good  against  the  judgment,  which 
could  only  be  answered  in  the  affirma- 
tive, because  the  judgment-creditor 
not  being  a  purchaser,  was  subject  to 
all  prior  equities,  whether  recorded 
or  unrecorded.  Hence,  as  the  defen- 
dant's equity  which  arose  under  a  con- 
veyance made  iu  pursuance  of  the 
declaration  of  trust,  while  the  sale  to 
the  plaintiff  tended  to  defeat  the  pur- 
pose for  which  the  trust  was  declared, 
was  better  in  itself  than  the  plaintiff's, 
and  as  the  failure  to  record  it  was  sup- 
plied by  the  recorded  conveyance  of  the 
legal  title,  of  which  the  plaintiff  was 
bound  to  take  notice,  the  court  was 
no  doubt  right  in  giving  judgment 
against  him  and  for  the  defendant. 
But  the  reasoning  of  the  Chief  Jus- 
tice, who  reiterated  the  language 
which  he  had  originally  held  in  Clwui 
V  Barnitz,  and  rested  the  decision  on 
the  weakness  of  the  plaintiff's  case,  as 
the  purchaser  of  an  equity,  rather  than 
on  the  strength  of  the  defendant's,  as 
the  holder  of  the  recorded  legal  title, 
is  more  questionable,  and  would  seem 
to    imply   that    the    purchaser   of  an 


equity  cannot  rely  on  the  recording 
acts  for  protection  against  prior  unre- 
corded trusts  or  equities,  of  which  he 
has  no  notice  at  the  time  of  his  pur- 
chase. "  No  rule,"  said  he,  "  is 
sounder  or  more  imperative,  than  that 
the  purchaser  of  an  inchoate  or  im- 
perfect title,  intimating,  as  it  does, 
that  something  is  kept  back,  must 
stand  or  fall  by  it  as  it  existed  in  the 
hands  of  his  vendor."  And  he  went 
on  to  hold,  that  as  the  interest  pur- 
chased by  the  plaintiff,  was  an  equity 
under  articles,  it  was  necessarily  taken, 
subject  to  all  existing  equities,  and 
consequently,  to  that  arising  under 
the  unrecorded  declaration  of  trust, 
which  made  Havens  a  mere  trustee 
for  such  persons  as  should  subse- 
quently buy  the  land  from  him,  as 
agent  of  the  company,  in  whose  behalf 
the  declaration  was  executed,  and  left 
him  a  mere  interest  in  the  resulting 
proceeds,  which  was  insusceptible  of 
the  lien  of  a  judgment,  or  of  being- 
levied  on  and  sold  as  realty  under  an 
execution. 

The  recent  case  of  Ingersoll  v.  Ser- 
geant, 7  Barr,  340;  3  Harris,  343, 
went  still  further  in  the  same  direc- 
tion, and  to  the  extent  of  deciding 
that  the  purchase  of  a  ground  rent 
from  a  vendor,  for  whom  it  was  held 
in  trust,  perfected  by  a  conveyance 
from  the  trustee,  was  subject  to  ante- 
cedent equities  created  by  the  cestui 
que  trust,  although  they  were  not  re- 
corded, while  the  chain  of  title  to  and 
from  the  trustee  was  regularly  deduced 
of  record.  The  mere  fact  that  the 
title  was  known  to  be  in  trust,  was 
held  sufficient  to  charge  the  purchaser 
with  notice,  not  merely  of  what  the 
trust  was  in  its  origin,  but  of  the  de- 
rivative estates   and   interests,  which 


BASSET     V.     NOSWORTHT. 


99 


had  been  created  or  carved  out  of  it 
subsequently  by  the  cestui  que  trust, 
although  neither  recorded,  nor  in  any 
way  made  known  to  the  trustee  or 
purchaser. 

The  reasoning  if  not  the  decision  of 
the  court  in  this  case,  implies  that  the 
purchaser  of  an  equitable  estate  by 
deed  duly  recorded,  is  subject  to  the 
prior  conveyances  or  contracts  of  the 
vendor,  although  not  recorded,  nor 
brought  home  to  the  purchaser,  by 
actual  or  constructive  notice,  other 
than  that  arising  from  the  nature  of 
the  purchase.  Such  a  conclusion 
seems  to  be  in  direct  conflict  with  the 
recording  acts  of  Pennsylvania,  which 
render  all  deeds  and  conveyances, 
and  d  fortiori,  all  covenants  or  agree- 
ments to  release  or  convey,  void  against 
subsequent  bona  fide  purchasers,  un- 
less put  on  record  before  the  purchase ; 
Correy  v.  Caxton,  4  Binney,  140. 
The  court,  however,  took  the  ground, 
that  as  the  purchaser  of  an  equitable 
title  is  necessarily  aware  that  it  is  an 
incomplete  and  imperfect  title,  he 
must  be  held  to  have  notice  of  all  prior 
rights  and  equities.  There  can  be  no 
doubt  that  the  purchaser  of  such  a 
title,  has  notice  of  all  claims  on  the 
part  of  the  holder  of  the  legal  title,  or 
at  least,  of  all  which  have  their  origin 
in  the  transaction  in  which  the  equity 
itself  originated;  Crawford  v.  Ber- 
tholf,  Saxton,  458.  Thus  a  purchaser 
of  an  equity,  arising  under  an  agree- 
ment for  the  sale  of  land,  merely  suc- 
ceeds to  the  right  of  the  vendee  to 
call  for  a  conveyance  of  the  title,  upon 
fulfilling  all  the  stipulations  entered 
into  with  the  vendor.  But  it  is  not 
easy  to  understand,  why  such  a  pur- 
chaser should  be  held  to  have  notice 
of   derivative    equities,    which    have 


sprung  up  under  or  against  the  vendee 
since  the  creation  of  his  equitable 
title.  Whether  the  estate  sold  be 
legal  or  equitable,  there  is  no  presump- 
tion of  fact  that  it  has  been  previous- 
ly alienated  or  encumbered  by  the 
vendor,  or  that  prior  alienations  or 
encumbrances  are  fraudulently  con- 
cealed from  the  vendee.  And  if  no 
such  presumption  exist  in  either  case 
in  fact,  it  should  not  be  raised  in  law, 
for  the  purpose  of  aflFecting  the  pur- 
chaser with  notice,  and  ou.^ug  him 
from  the  rights  he  would  otherwise 
have,  on  the  ground  of  hona  fides  and 
valuable  consideration.  Such  a  result 
seems  extreme  in  itself,  and  rather 
calculated  to  facilitate  than  to  dimi- 
nish fraud,  aiite,  73.  It  has  accord- 
ingly been  held  on  several  occasions, 
that  although  the  purchase  of  an  equit- 
able title,  does  not  in  itself,  entitle 
the  purchaser  to  protection,  against 
antecedent  rights  and  equities  on  the 
one  hand,  yet  that  it  does  not  aflfect 
him  with  notice  of  their  existence  on 
the  other,  nor  deprive  him  of  the 
benefit  of  the  recording  acts,  or  the 
right  to  protect  himself  by  obtaining 
a  conveyance  of  the  legal  title; 
Correy  v.  Caxton.  Thus  in  Bellas  v. 
M^Carty,  10  Watts,  25,  a  purchaser 
without  actual  notice  of  a  prior  unre- 
corded conveyance,  was  said  not  to  be 
affected  with  constructive  notice,  by 
the  mere  fact  that  the  estate  purchased 
was  equitable  and  not  legal.  "  The 
language  of  the  recording  acts,"  said 
Rogers,  J.,  in  delivering  the  opinion 
of  the  court,  "is  sufficiently  compre- 
hensive to  embrace  equitable  as  well 
as  legal  titles,  and  the  record  of  an 
equitable  title  is  notice  to  all  subse- 
quent purchasers."  "  We  are,  there- 
fore, of  opinion  that  the  hona  fide  pur- 


100 


BONA     FIDE     PUKCHASERS. 


chaser  of  an  estate,  whether  legal  or 
equitable,  without  actual  or  construc- 
tive notice,  who  has  recorded  his  deed 
in  due  time,  and  pursued  his  claim  in 
other  respects  with  diligence,  is  to  be 
preferred  to  a  prior  purchaser  claim- 
ing   under    an   unregistered    deed." 
Similar  ground  was  taken  in  the  case 
of  Flagg  v.  Mann,  2  Sumner,  486, 
557,  where  Story,  J.,  expressed  the 
opinion,  that  a  purchaser  of  an  equity 
who  has  succeeded  in  completing  his 
title  at  ftw,  will  not  be  affected  with 
notice,  and  turned  out  of  possession 
by  chancery,  merely  because  he  took 
a  conveyance  from  the  cestui  que  trust 
in  the  first  instance,  before  obtaining 
the  legal  estate  from  the  trustee ;  and 
that  where  a   purchase  for  valuable 
consideration  is  set  forth  by  way  of 
answer,  and  attended  with  a  full  dis- 
covery, the  only  question  should  be  as 
to  whether  the  purchase  was  made  in 
good  faith,  and  under  circumstances 
showing   an    apparent    right    in    the 
vendor  to  convey,  whatever  the  rule 
may  be  where   such   a   purchase,  is 
pleaded  as  a  bar  both  to  relief  and  dis- 
covery.    "If;"  said  he,  "  a  cestui  que 
trust  in  fee  conveys  the  estate  to  a 
purchaser,  and  the  trustee  afterwards 
confirms  the  sale  and  releases  to  the 
cestui  que  trust  or  to  the  purchaser,  it 
seems  to  me  that  such  a  purchase  is 
entitled  to  protection,  against  any  an- 
tecedent  secret   trust,  which    is  un- 
known to  him  at  the  time  of  the  pur- 
chase; and  the  confiruiation  is  opera- 
tive, notwithstanding  that  in  g,  strict 
leal  sense,  the  cestui  que  trust  was 
not  seised  of  the  estate  at  the  time  of 
his  conveyance."     The  point  actually 
decided  in  this  case  was,  that  the  pur- 
chaser will  be  protected,  although  the 
title  of  the  vendor  may  have  been  in 


escrow  at  the  time  of  the  purchase, 
but  although  the  effect  of  a  purchase 
from  a  cestui  que  trust  was  not  pre- 
sented for  decision,  the  opinion  ex- 
pressed as  to  its  validity,  may  be  re- 
garded as  countervailing  the  authority 
of  Sergeant  v.  Ingersoll.  In  fact,  the 
case  thus  put  as  constituting  a  good 
title  in  the  purchaser,  and  which,  in 
Sergeant  v.  Ingersoll,  was  held  to  de- 
feat his  title,  is  treated  in  England  as 
the  most  favorable  to  the  security  of 
a  title,  being  that  which  arises  when 
a  term  of  years  held  in  trust  and  at- 
tendant on  the  inheritance,  is  convey- 
ed by  the  trustee,  either  directly  to 
the  purchaser  or  to  a  third  person,  for 
his  protection  and  benefit.  There,  of 
course,  the  estate  purchased  is  subject 
to  the  outstanding  legal  title  in  the 
term,  but  this,  so  far  from  letting  in 
the  holders  of  prior  estates  or  equities, 
has  always  been  held  to  exclude  them, 
unless  they  have  acquired  a  right  to 
the  legal  estate,  through  the  agree- 
ment or  conveyance  of  the  party  in 
whom  it  is  vested  ;  CottrcUv.  Hughes, 
15  C.  B.  532;  Willoughbt/  v.  Wil- 
hughhy,  1  Terra,  761. 

This  view  of  the  law  is  supported 
by  the  strongest  considerations  of  ex- 
pediency, as  well  as  of  reason,  for  few 
things  are  more  obvious  than  the  evils 
which  would  ensue,  if  every  purchase 
of  an  estate  held  in  trust,  and  per- 
fected by  a  recorded  conveyance  from 
the  trustee,  were  held  to  be  sub- 
ject to  antecedent  equities  or  encum- 
brances created  by  the  cestui  que 
trust. 

The  nature  of  the  deed  by  which 
the  land  is  conveyed  to  the  pur- 
chaser would  seem  to  be  immaterial, 
if  it  possess  the  requisites  necessary 
to  render  it  effectual  as  a  conveyance; 


BASSET     V.     NOSWORTHT. 


101 


Flagg  v.  Mann,  2  Sumner,  426,  561. 
Thus  it  was  held,  in  Flagg  v.  Mann, 
that  the  right  of  the  vendee  to  pro- 
tection, was  not  affected  by  his  claim- 
ing under  a  deed  of  release,  because 
the  law  would  give  such  a  deed  effect 
as  a  bargain  and  sale,  if  made  for  a 
valuable  consideration.     There  can  be 
little  doubt  of  the  propriety  of  this 
decision,  for  all  deeds  operating  by 
way  of  grant,  or  under  the  Statute  of 
Uses,  have  the  common  property  of 
passing  such  estate  as  the  grantor  has, 
and  nothing  more,  so  that  the  form 
of  the  conveyance  cannot  vary  or  in- 
crease the  rights  of  the  purchaser.     It 
may,  however,  be  admitted,  that  where 
it  is  apparent  on  the  face  of  the  trans- 
action, that  it  was  merely  intended  as 
a  purchase  of  such  estate  as  the  grantor 
actually  had,  the  purchaser  will  not  be 
within  the  rule,  which  requires  the 
assertion  of  an  absolute  title  on  the 
part  of  the  vendor,  and  a  belief  in  such 
assertion  on  that  of  the  vendee ;  Boone 
V.  CMUes,  10  Peters,  177 ;  Vattier  v. 
Hinde,  7  Id.  271.      Hence,  a  deed 
which  simply  purports  to  pass  all  the 
right,  title,  and  interest  of  the  grantor, 
will  not  exclude  the   operation  of  a 
prior  unregistered  mortgage ;  Bragg 
V.  Paulk,    42    Maine,  502 ;    because 
there  is  nothing  in  such   an   instru- 
ment to  show  that  he  assumed  to  pass, 
or  that  the  grantee  expected  to  ac- 
quire an  unincumbered  title ;  and  the 
court  will  not  infer  or  impute  a  fraud- 
ulent design  to  defeat  or  injure  a  prior 
encumbrancer,  unless  the  circumstan- 
ces are  such  as  to  establish  its  exist- 
ence; Smith's  Heirs  Y.  The  Bank,  21 
Alabama,   24.      But   there    is    some 
difficulty  in  assenting  to  a  dictum  in 
Oliver  V.  Piatt,  3  Howard,  333,  that 
taking  a  deed  with  a  covenant  of  spe- 


cial warranty,  is  sufficient  to  show  a 
doubt  of  the  warrantor's  title.  Such 
an  inference  would  appear  wholly 
inadmissible,  and  would  be  received 
with  no  little  surprise  in  Pennsylva- 
nia, where  covenants  of  general  war- 
ranty are  so  seldom  used,  that  in  Cres- 
son  V.  Miller,  2  Watts,  272,  the  in- 
troduction of  such  a  covenant  into  a 
deed,  was  sought  to  be  made  the 
ground  of  an  inference  against  the 
good  faith  of  the  purchaser. 

It  is  essential  to  entitle  the  vendee 
to  protection  in  England,  that  the 
purchase  should  have  been  brought 
to  a  conclusion  by  the  payment  of  the 
whole  of  the  purchase-money  on  the 
one  part,  and  the  execution  of  the 
conveyance  on  the  other;  and  relief 
will  be  denied  if  notice  be  given  while 
the  transaction  is  incomplete  in  either 
particular;  Simms  \.  Richardson,  2 
Littell,  229;  Nantz  v.  3I'Phe7'son,  7 
Munford,  599;  Pillow's  ITeirsY.  Shan- 
non's Heirs,  3  Yerger,  308 ;  Bush  v. 
Bush,  3  Strobhart's  Equity,  301 ; 
Duncan  v.  Johnson,  13  Arkansas, 
190.  But  with  regard  to  these  requi- 
sites, as  well  as  those  last  considered, 
there  has  been  much  difference  of 
opinion  in  this  country,  and  while 
they  have  been  insisted  on  in  some 
cases,  they  have  been  questioned  or 
modified  in  others. 

The  reason  for  requiring  an  abso- 
lute execution  of  the  conveyance,  in 
addition  to  the  completion  of  the  pur- 
chase in  the  ordinary  sense  of  the  word, 
by  closing  the  bargain,  and  paying  the 
purchase-money,  is  not  clearly  stated 
or  explained  in  the  cases,  or  by  the 
writers  on  this  subject,  but  would 
seem  to  be,  that  so  long  as  the  title 
to  the  estate  remains  in  the  vendor, 
it  will  be  held  in  trust  for  prior  cqui- 


102 


BONA     FIDE     PURCHASERS. 


ties,  in  preference  to  tliose  of  later 
origia.  Thus  it  has  been  said,  that 
equity  recognizes  the  superior  right  of 
a  prior  purchaser,  to  a  conveyance  of 
the  legal  title,  and  that  a  subsequent 
purchaser  will  not  be  allowed  to  de- 
feat this  right,  by  taking  a  conveyance 
after  notice.  This,  however,  is  at  va- 
riance with  the  established  doctrine 
of  equity,  known  as  that  of  tacking, 
under  which  a  legal  title  may  be 
bought  in  by  a  junior  equity,  fo«:  the 
express  purpose  of  excluding  prior 
equities;  Brace  v.  The  Duchess  of 
Marlborough,  2  P.  Wms.  491 ;  and 
cannot  serve  as  the  reason  of  a  rule 
which  applies  equally  in  cases  where 
the  vendor  has  no  title  whatever,  and 
where  he  has  a  good  legal  title.  A 
better  explanation  would  seem  to  be, 
that  as  a  purchaser  who  is  evicted 
before  actual  conveyance,  may  recover 
back  the  purchase-money  if  paid;  Sug- 
den  on  Vendors,  vol.  2,  page  419,  pi. 
4 ;  he  will  be  left  to  his  remedy  against 
the  vendor,  and  his  equity  will  be  con- 
sidered as  inferior  to  that  of  other  par- 
ties, whose  claims  are  founded  on  past 
transactions,  and  who  may  have  no  per- 
sonal remedy,  if  debarred  of  the  right 
of  recourse  to  the  land.  But,  whatever 
the  grounds  on  which  the  necessity  for 
an  actual  conveyance,  to  complete  the 
right  of  a  purchaser  for  value  may  be 
held  to  depend,  it  is  well  settled  in 
England,  and  has  been  recognized  on 
several  occasions  by  the  courts  of  this 
country ;  Snehjrove  v.  Snchjrove,  su- 
pra, 59  ;  Boone  v.  Chilles ;  B,ush  v. 
Bush;  Moore  v.  Clai/,  7  Alabama, 
142 ;  Blight's  Heirs  v.  Bond,  G  Mon- 
roe, 198;  Ilaktead  v.  The  Bank  of 
Kentucky,  4  J.  J.  Marshall,  554; 
Blair  V.  Owles,  1  Munford,  oS ;  The 
Mutual  Assurance  Society  v.  Stowe,  3 


Leigh,  218 ;  Doswell  v.  Buchanan' s 
Ex'ors,  lb.  365.  We  have,  however, 
seen,  that  a  purchaser  will  be  pro- 
tected not  only  when  he  has  actually 
acquired  the  legal  title,  but  when  he 
has  a  better  right  to  it  than  any  one 
by  whom  his  equity  is  contested; 
ante;  and  there  can  be  little  doubt, 
that  such  a  right  may  grow,  in  many 
cases,  out  of  the  payment  of  purchase- 
money  before,  or  without  the  execu- 
tion of  a  deed  of  conveyance.  Thus, 
in  Youst  V.  Martin,  3  S.  &  R.  430, 
the  Supreme  Court  of  Pennsylvania 
expressed  the  opinion,  that  the  pur- 
chaser will  be  protected  for  payments, 
made  in  good  faith  before  the  execu- 
tion of  the  deed  of  conveyance,  to  the 
extent  of  requiring  reimbursement 
from  any  one  who  seeks  the  aid  of 
equity  to  dispossess  him.  It  was 
further  intimated,  that  expenditures 
in  improving,  or  building  on  the  es- 
tate, would  be  viewed  in  the  same 
light  with  payments  of  the  purchase- 
money  ;  and  the  law  was  so  held  in 
the  subsequent  case  of  Boggs  v.  War- 
ner, 6  W.  &  S.  469.  And  it  would 
seem  that  equity  will  not  grant  its 
assistance  against  a  purchaser  in  Eng- 
land, even  when  the  purchase  is  not 
fully  completed,  without  obliging  the 
complainant  to  make  compensation  for 
substantial  improvements.  Such,  at 
least,  is  the  rule  as  between  vendor 
and  vendee,  if  not  in  other  cases. 

In  those  cases,  however,  as  in  all 
arising  under  the  technical  head  of  a 
purchase  for  value,  equity  can  only 
relieve  as  against  the  holder  of  the 
legal  title,  by  refusing  to  assist  him, 
or  by  compelling  him  to  come  into 
terras,  as  the  price  of  its  assistance, 
and  not  by  interfering  with  the  ex- 
ercise  of  any  right    which   he    may 


BASSET     V.     NOSWORTHY. 


103 


have  at  law.  It  has  beeu  held,  in 
some  instances,  that  if  the  holder 
of  a  legal  title  comes  into  equity  to 
obtain  its  assistance,  on  grounds  fall- 
ing within  any  of  the  heads  of  equi- 
table jurisdiction,  it  cannot  be  re- 
fused, even  as  against  a  purchaser  for 
valuable  consideration,  and  without 
notice ;  Blake  v,  Heyward,  1  Bailey's 
Equity,  408  ;  ante,  54,  72;  Sugden  on 
Vendors,  vol.  3,  p.  495.  And  it  is  suf- 
ficiently plain,  that  an  action  brought 
in  a  court  of  law,  on  a  legal  title,  can- 
not be  arrested  either  in  that  court, 
or  by  any  other,  merely  on  the  ground 
that  the  defendant  is  a  purchaser  for 
value,  and,  as  such,  has  made  pay- 
ments or  expenditures,  in  ignorance 
of  the  rights  of  the  plaintiff. 

The  language  held  in  some  of  the 
courts  might  seem  to  imply,  that, 
to  make  a  defence  resting  on  a  pur- 
chase for  valuable  consideration,  suf- 
ficient for  the  protection  of  the  pur- 
chaser, it  must  have  been  of  a  va- 
lid, and  not  merely  a  pretended  legal 
title;  and  that  such  a  defence  will 
otherwise  be  unavailing,  not  merely 
as  against  the  legal  title,  but  against 
a  prior  equity;  Polk  v.  Gallant,  2 
Dev.  &  Bat.  395 ;  Winhom  v.  Gor- 
rell,  3  Iredell's  Equity,  117 ;  Boone 
V.  GMlles,  10  Peters,  177.  But  these 
dicta,  obviously,  must  be  confined  to 
those  cases  where  the  purchaser  knows, 
or  has  the  means  of  knowing,  the  na- 
ture of  the  estate  which  he  buys ;  and 
would  otherwise  be  at  variance  with 
the  doctrines  of  equity  in  England,  as 
laid  down  by  Lord  Eldon,  which  deny 
equitable  relief  against  a  purchaser, 
not  only  in  those  cases  where  he  has 
obtained  a  legal  title,  but  where  he 
has  expended  his  money  in  good  faith, 
under  the  fallacious  belief  that  such  a 


title  has  been  obtained  ;  Gottrell  v. 
Hughes,  15  C.  B.  532;  Jones  v. 
Bowles,  3  Mylue  &  Keene,  581 ;  ante, 
56. 

From  what  has  been  said  it  is  plain, 
that  to  create  a  defence  against  prior 
equities,  there  must  be  something 
more  than  a  grant,  or  conveyance 
without  consideration,  or  merely  in 
consideration  of  natural  love  and  af- 
fection, and  that  the  grantee  must  be 
a  purchaser  for  valuable  consideration, 
as  well  as  in  the  technical  sense  of  the 
common  law ;  Frost  v.  Beekman,  1 
Johnson's  Ch.  288  ;  Everts  v.  Agnes,  4 
Wisconsin,  343;  Patton  v.  Moore,  32 
New  Hampshire,  382 ;  Sioan  v.  Ligan, 
1  M'Cord's  Chancery,  232;  Boone  v. 
Barnes,  23  Mississippi,  136  ;  Ujishaio 
V.  Hargrove,  6  Smedes  &  Marshall, 
292.  It  is  difficult,  however,  in  this, 
as  in  other  cases,  to  determine  what 
is  to  be  considered  a  valuable  consi- 
deration, as  distinguished  from  one 
merely  good  or  valid.  If  we  resort 
to  the  analogies  of  the  commercial 
law,  we  shall  find  it  settled  through- 
out the  greater  part  of  this  country, 
that  in  order  to  constitute  a  valuable 
consideration  for  the  negotiation  of 
bills  and  notes,  it  is  not  necessary 
that  there  should  be  a  new  and  spe- 
cific payment,  or  transfer  of  money, 
or  money's  worth,  and  that  the  relin- 
quishment of  any  legal  or  equitable 
right,  or  the  satisfaction  or  suspen- 
sion of  an  existing  debt,  or  demand, 
will  have  the  same  effect  as  actual 
payment,  in  giving  a  right  of  recovery 
to  the  endorsee  of  a  negotiable  instru- 
ment, where  none  existed  on  the  part 
of  the  endorser;  Brush  v.  Scrihner, 
17  Conn.  388  ;  Homes  v.  Smith,  10 
Maine,  177 ;  Dudley  v.  Littlefield, 
21    Id.    418;     Walker   v.    Geisse,  4 


104 


BONA     FIDE     PURCHASERS. 


Wharton,  252 ;  Reddich  v.  Jones,  6 
Iredell,  107 ;  Barney  v.  Earle,  13 
Alabama,  106 ;  Russell  v.  Haddock, 
3  Grilman,  233;  DejieauY.  Wadding- 
ton,  6  Wharton,  220 ;  2  American 
Leading  Cases,  214,  4th  ed. 

It  is  well  settled,  also,  that  the  trans- 
fer of  the  assets  of  an  estate  in  pay- 
ment of  the  personal  debt  of  the  exe- 
cutor, will  take  effect  as  a  sale  for 
valuable  consideration,  and  vest  a 
good  title  in  the  creditor  when  he  has 
acted  in  good  faith,  and  without  know- 
ledge of  any  fraudulent,  or  improper 
design  on  the  part  of  the  debtor ; 
Ma/ent  v.  Giffard,  1  Atk.  463  ;  Mead 
V.  Lord  Orrery,  3  Id.  235 ;  Petrie  v. 
Clark,  11  S.  &  R.  377;  Field  v. 
Schieffelen, 1  3 ohn^on,  Ch.  150;  ante, 
vol.  1,  p.  124.  It  would  seem  that  the 
same  principles  are  applicable  to  sales 
of  real  estate,  and  that  the  acceptance 
of  land  as  absolute  payment  of  a  debt, 
will  entitle  the  creditor  to  be  consi- 
dered as  a  purchaser  for  value;  Do- 
naldson V.  The  State  Bank,  1  Deve- 
reux,  103  ;  Tlie  Ohio  Life  Ins,  Co. 
V.  Ledyard,  8  Alabama,  866. 

It  is,  however,  generally  admitted, 
that  the  mere  existence  of  a  prece- 
dent debt,  is  not  a  sufficient  conside- 
ration, to  support  the  negotiation  of 
commercial  instruments,  and  thus 
when  a  note  or  bill,  is  endorsed  as 
collateral  security  for  such  a  debt, 
the  endorsee  will  stand  in  no  better 
position  than  the  endorser ;  Petrie  v. 
Clark,  11  S.  &  R.  371 ;  Painter  v. 
Zane,  2  Grrattan,  262 ;  1  American 
Lead.  Cases,  210,  4th  eJ.  And  it  is 
equally  well  settled,  for  similar  rea- 
sons, that,  although  a  sale,  vitiated  by 
fraud,  cannot  be  set  aside  in  the  hands 
of  a  bona  Jide  purchaser,  from  the 
fraudulent  vendee;  yet,  that  no  one 


can  claim  the  bcnelit  of  this  doctrine, 
who  has  not  parted  with  value,  or  who 
has  taken  the  goods  as  security  for  an 
antecedent  debt ;  Bnfflngion  v.  Ger- 
rish,  15  Mass.  156;  Ilodgden  v.  Huh- 
hard,  18  Vermont,  504 ;  Poor  v. 
Woodhurn,  25  Id.  235;  Clark  v. 
Flint,  22  Pick.  231.  In  Ujishaw  v. 
Hargrove,  6  Smedes  &  Marshall,  292 ; 
Boone  V.  Barnes,  23  Mississippi,  136; 
and  Holstead  v.  The  Bank  of  Ken- 
tucky, 4  J.  J.  Marshall,  554,  the  same 
rule  was  applied  to  the  conveyance  of 
land  by  a  debtor  to  a  creditor,  which 
was  said  not  to  render  the  latter  a  pur- 
chaser for  value,  unless  something  was 
given  up  or  relinquished,  on  the  faith 
of  the  conveyance,  or  the  transfer  ac- 
cepted in  absolute  payment,  or  satis- 
faction for  the  debt.  Similar  decisions 
were  made  in  Donaldson  v.  The  Bank 
of  Cajie  Fear,  1  Dev.  Ch.  103 ;  and 
Bragg  v.  Paulk,  42  Maine,  502;  and 
the  conveyance  of  land  as  collateral  se- 
curity for  a  precedent  debt,  held  not 
to  entitle  the  grantee  to  protection 
against  prior  equities.  The  same 
principle  holds  good  where  the  con- 
veyance is  made  indirectly  through  a 
trustee,  instead  of  directly  to  the 
debtor.  An  assignee  for  benefit  of 
creditors,  stands,  therefore,  in  the 
position  of  the  assignor,  and  takes 
the  estate  subject  to  all  equities, 
which  were  binding  before  the  as- 
signment ;  Willis  V.  Henderson,  4 
Scammon,  13  ;  Twelves  v.  Williams, 
3  Wharton,  485.  ''The  creditors," 
said  Gibson,  C.  J.,  in  delivering  the 
opinion  of  the  court  in  Twelves  v. 
Williams,  ''have  not  released;  and 
the  interests  of  the  parties  remain  as 
they  were  at  the  date  of  the  assign- 
ment. The  assignees  being  instru- 
ments   selected    by   the    debtor,   and 


BASSET     V.     NOSWORTHY. 


105 


having  no  beneficial  interest  as  such, 
stand    in    no   personal  or  distinctive 
equity ;  for  though  a  pecuniary  con- 
sideration  is  always   inserted  in  the 
deed,  where  they  are   not   creditors, 
(the   necessity  of  which,  to  protect 
the  transaction  from  the  statutes  of 
Elizabeth,  is  shown    in    Roberts   on 
Fraudulent    Conveyances,  429,    and 
recognized   in    Howry   v.   Miller,    3 
Penn.   Rep.  381,)  it  is  merely  nomi- 
nal, and  not  that  substantial  sort  of 
equivalent  which    gives    a    claim    to 
something  in  return.     Their  equity, 
if  any,  must  be  the  equity  of  the  cre- 
ditors represented  by  them  ;  and  what 
substantive  or  formal  advantages  have 
these  surrendered  in  compensation  for 
the  benefits  expected  from  the  assign- 
ment ?    No  such  surrender  is  pretend- 
ed.    Nor  are  they  placed  in  the  cata- 
gory  of  purchasers  by  their  character 
or  position.     That  they  are  not  pro- 
tected as  such  by  the  recording  acts, 
was  declared  in  Heister  v.   Fortner, 
(2  Binn.  40 ;)  and  though  it  was  said 
in   Petrie  v.    Clarh,   (11   Sergeant  & 
Rawle,  377,)  that  the  extinguishment 
of  a  debt  is  a  valuable  consideration 
for  a  thing  taken  in  satisfaction  of  it, 
the  acceptance  of  it  as  a  security  with- 
out a  stipulation  for  forbearance,  was 
held  to  be  otherwise.    So  also  in  Ram- 
sai/'s  Appeal,  (2  Watts,  232,)  credi- 
tors were  held  to  stand  exactly  in  the 
equity  of  their  debtor.     I  know  of  no 
case  in  which  the  abstract  existence 
of  debts  was  held  to  be  a  valuable  con- 
si  J  eration  for  a  transfer  of  property  to 
trustees  for  distributive  payment,  ex- 
cept Bayley  v.  Greenleaf,  to  be  pre- 
sently noticed. 

"  In  Lord  Paget' s  Case,  (1  Leon. 
194,)  it  was  held,  that  the  mere  des- 
tination of  property  to  payment  of  the 


grantor's  debts,  by  ageneral  assignment 
to  a  stranger,  is  not  a  consideration  even 
to  raise  a  use  on  a  covenant  to  stand 
seised,  and  consequently,  not  to  pass 
even  the  legal  title;  and  there  is  there- 
fore nothing  to  sustain  it,  under  the 
statute  of  Elizabeth,  against  a  credi- 
tor or  a  purchaser,  though  it  is  good 
against  an  heir ;  Leach  v.  Leach,  (Ch. 
Ca.  249.)     But  where  the  creditors 
are  party  to  the  deed,  there  is  a  clear 
valuable    consideration    in    the    for- 
bearance of  suit  and  mutual  accommo- 
dation expressed  by  the  terms,  or  im- 
plied by  the  nature  of  the  transaction; 
Roberts  on  Fraud;  Con.  431.    In  the 
case  before  us,  the  creditors  not  having 
become  parties  to  the  transaction,  by 
performance  of  the  condition,  which 
alone  could  make  them  so,  were  bound 
in  the  meantime  to  no  forbearance  or 
accommodation  whatever." 

The  same  course  is  adopted  in  New 
York  and  Massachusetts,  where  it 
has  been  decided,  that  the  assignment 
of  property  in  trust  for  the  payment 
of  creditors,  does  not  render  the  as- 
signees purchasers  for  valuable  consi- 
deration, as  against  prior  equities,  even 
when  the  creditors  have  become  par- 
ties to  the  transaction,  unless  they 
have  relinquished  some  right,  or 
incurred  some  responsibility,  which, 
would  not  have  been  incurred  or  re- 
linquished, had  they  known  the  exist- 
ence of  the  equity  set  up  against  the 
assignment;  Griffin  \.  Marqnardt,  17 
New  York  R.  28;  Van  Reusen  v. 
Radcllff,  lb.  580 ;  Haggerty  v.  Pal- 
mer, 6  Johnson's  Ch.  437 ;  Holland 
V.  Craft,  20  Pick.  32;  Clarhv.  Flint, 
22  Id.  231.  In  Clark  v.  Flint,  the 
assignment  contained  a  clause  releas- 
ing; the  debtor.  There  can  be  no 
doubt  that  where  a  specific  convey- 


106 


BONA     FIDE     PURCHASERS. 


ance  in  satisfaction  of  a  debt,  and  a 
release  of  tlie  debtor  are  concurrent, 
the  execution  of  each  will  be  referred 
to  the  other,  and  both  will  be  upheld 
by  a  sufficient  and  mutual  considera- 
tion.   But,  it  seems  to  have  been  held 
that  as  the  assignment  was  general, 
there  was  nothing  to  connect  the  exe- 
cution of  the  release,  with  one  part  of 
the  property  assigned,  rather  than  an- 
other, or  to  show  that  it  would  not 
have  been  executed,  had  the  interest 
in  controversy  been  excepted  by  the 
assignor.     In  Ludwig  v.  Highley^  5 
Barr,  132,  it  was  decided  that  even  if 
creditors  who  actually  release  in  con- 
sideration of  an  assignment,  are  to  be 
considered  as  purchasers,  they  will  not 
have  that  character  when  the  release 
rests  merely  in  covenant,  for  if  the 
title  of  the  assignor  prove  defective, 
equity  will  relieve  against  the  cove- 
nant.    And  an  opinion  was  intimated, 
that  relief  would  be  afiPorded  under 
such  circumstances,  against  an  actual 
release,  and  that  it  is,  consequently, 
insufficient  to  give  the  rights  attached 
to  a  purchaser  for  value.     There  is, 
moreover,  much  reason  for  contending, 
that  where  words  of  assignment  are 
general,  they  shall  be  construed  as  ap- 
plying merely  to  the  estate  which  the 
debtor  is  legally  and  ec^uitably  entitled 
to  assign.  Any  other  construction  sup- 
poses an  intention  to  defraud  on  his 
part,  which  the  law  ought  not  to  infer 
from    general    words,    susceptible    of 
another  interpretation  ;  /Smith's  Heirs 
V.  The  Bank,  21  Alabama,  125..  The 
presumption    in  every  such  instance 
is,   that    the   creditors    release,   upon 
the     understanding     that    they    arc 
to   acquire   the  whole   estate  of  the 
debtor,  whether  more  or  less,  and  it  is 
sufficiently   reasonable   to    deny   the 


transaction  the  character  of  a  purchase 
of  specific  property,  unless  the  pro- 
perty is  specified  as  passing  by  the 
assignment. 

In  Bayhi/  v.  GreenU.af,  7  Whea- 
ton,  46,  however,  and  Richson  v. 
Eichson,  2  Grattan,  497,  assignees 
for  the  benefit  of  creditors,  were  held 
to  partake  so  far  of  the  character  of  a 
purchasers,  to  be  entitled  to  protection 
against  prior  equities  or  equitable 
liens  for  the  payment  of  purchase- 
money;  while  in  Dei/  v.  Dunham,  2 
Johnson's  Ch.  112,  assignments  in 
trust  for  the  payment  of  debts,  were 
treated  as  being  in  all  respects  on  the 
foot  of  purchases  for  value.  But  this 
decision,  which  would  seem  to  have 
been  induced  by  a  misapprehension 
of  Stephenson  v.  Heyward,  Prec.  in 
Chancery,  210,  is  not  followed  in  the 
State  in  which  it  was  made;  Van  Heusen 
V.  Radcliff,  17  New  York  R.  580 ;  and 
the  cases  of  Bayley  v.  Greenleaf,  and 
Richson  v.  Richson,  may  be  thought 
to  have  been  influenced  by  the  pecu- 
liar nature  of  the  antecedent  equity, 
which  is  not  favored  by  the  courts  of 
this  country,  and  the  injustice  of  post- 
poning creditors  who  had  acquired  a 
good  legal  title,  to  others  whose  claim 
is  merely  equitable;  ante,  vol.  1st, 
371. 

In  the  recent  case  of  Wickham  v. 
Martin,  13  Grattan,  427,  437,  assig- 
nees for  the  benefit  of  creditors,  or  the 
creditors  claiming  under  such  an  as- 
signment, were  said  to  have  all  the 
rights  of  purchasers,  in  Virginia, 
whatever  the  rule  might  be  in  the  rest 
of  the  Union.  But  it  docs  not  neces- 
sarily follow,  even  under  the  view 
taken  in  this  case  and  in  Dey  v.  Dun- 
ham,  that  the  mere  existence  of  a  debt 
is  a  consideration,  or  that  a  party  who 


BASSET     V.     NOSWORTHY. 


107 


takes  a  conveyance  or  mortgage  as  a 
security,  is  to  be  regarded  as  a  pur- 
chaser for  value.  For  the  object  of 
an  assignment  in  trust  for  creditors  is 
payment,  and  although  that  object 
cannot  be  attained  until  the  assign- 
ment is  carried  into  execution,  yet  it 
is  sufficient  to  give  the  transaction  a 
different  character,  from  that  of  a 
transfer  of  property  as  a  mere  security. 
There  are,  however,  several  decisions 
in  which  it  has  been  held,  that  the 
existence  of  a  precedent  debt,  is  suffi- 
cient to  give  full  effect»to  the  negotia- 
tion of  a  bill  or  note,  transferred  as 
security  for  its  payment;  Siolft  v. 
Tyson,  16  Peters,  1 ;  Felloics  v.  Pren- 
tiss, 12  Smedes  &  Marshall,  412; 
Smith  V.  Hiscock,  14  Maine,  449; 
Gibson  V.  Conner,  3  Greorgia,  47;  1 
American  Leading  Cases,  325 ;  2  Id. 
311,  4th  ed.  And  in  Swift  v.  Tyson, 
where  this  doctrine  was  adopted  by 
the  Supreme  Court  of  the  United 
States,  it  was  said  that  "  a  precedent 
debt  is  a  valuable  consideration,  in  the 
sense  of  the  general  rule,  applicable 
to  commercial  instruments."  So  far 
as  this  rule  is  applicable  to  the  trans- 
fer of  real  estate,  it  must  follow  that 
every  conveyance  between  debtor  and 
creditor,  will  take  effect  as  a  purchase 
for  value,  if  founded  upon  the  debt, 
whether  intended  as  absolute  payment, 
or  as  collateral  security.  But  the 
point  does  not  appear  to  have  been  so 
held,  in  any  instance  which  can  be  re- 
lied on  as  an  authority,  against  the 
decisions  the  other  way;  although  in 
Eyre  v.  Dolphin,  2  Ball  &  Beatty,90, 
where  a  mortgage  taken  as  collateral 
security,  was  held  invalid  against  prior 
equities  on  other  grounds,  no  question 
was  raised  on  that  of  consideration. 
In  the   recent    case   of   Ba(jarly  v. 


Gaither,  2  Jones,  Eq.  80,  the  point 
was  treated  as  doubtful  in  North  Caro- 
lina; Halderhy  V.  Blum,  2  Dev.  & 
Bat.  Equity,  51,  being  cited  as  sus- 
taining the  proposition  that  a  convey- 
ance made  as  security  for  an  antece- 
dent debt,  will  constitute  a  purchase 
for  value  ;  and  Raddich  v.  Jones,  6 
Iredell,  109,  and  Ingham  v.  Kirh- 
patrick,  6  Iredell's  Eq.  465,  as  tend- 
ing in  the  opposite  direction. 

This  question  is  viewed  in  a  differ- 
ent aspect  in  New  York  and  Ten- 
nessee, from  that  in  which  it  is  re- 
garded throughout  the  rest  of  the 
Union,  and  it  is  held  in  those  States 
that  the  suspension,  or  satisfaction  of 
a  precedent  debt,  is  not  a  sufficient 
consideration  to  give  validity  to  a  bill, 
or  note  in  the  hands  of  an  endorsee, 
when  it  was  invalid  in  those  of  the 
endorser;  Rosa  v.  Brotherton,  10 
Wend.  86  ;  The  New  York  Bank  v. 
Worthington,  12  Id.  593 ;  Stalker  v. 
3P Donald,  6  Hill,  93;  Stewart  v. 
Small,  2  Id.  559 ;  Clark  v.  Ely,  2 
Sandford's  Chancery,  168 ;  Wormley  v. 
Dowry,  1  Humphrey,  468 ;  Ingram^. 
Morgan,  4  Id.  66.  In  Root  v.  French, 
13  Wend.  570,  and  Clark  v.  Flint,  22 
Pick.  231,  243,  this  doctrine  was  ap- 
plied to  the  sale  of  chattels  personal, 
and  in  Dickerson  v.  Tillinghast,  4 
Paige,  215,  to  that  of  real  estate,  and 
it  was  decided,  that  the  conveyance  of 
land  in  payment  of  an  antecedent 
debt,  does  not  put  the  grantee  in  the 
position  of  a  purchaser  for  value,  nor 
entitle  him  to  the  protection  of  a  court 
of  equity.  The  law  was  held  the  same 
way  in  Rowan  v.  Adams,  1  Smedes  & 
Marshall's  Ch.  45  ;  Evertson  v.  Evert- 
son,  5  Paige,  644,  and  Powell  v.  Jef- 
fries, 4  Scammon,  387;  and  a  similar 
view  was  taken  in  Jackson  v.  j\Jyers, 


108 


BONA     FIDE     PURCHASERS. 


11  Wend.  53;  Clark  v.  Hint,  i'l  Pick. 
231 ;  and  Van  Ileusen  v.  Raddiff, 
17  New  York  K.  580,  although  the 
point  was  not  actually  decided.  In 
Morse  V.  Godfrey,  3  Story,  364,  390, 
Story,  J.,  adhered  to  this  view  of  the 
question,  at  least  in  those  cases  whei'e 
the  conveyance  is  made  as  security 
and  not  as  payment,  which  was 
somewhat  inaccurately  said  to  have 
been  the  view  taken  in  Swift  v. 
Tyson.  The  relinquishment  of  a  valid 
security  for  a  precedent  debt,  was, 
however,  held  a  sufficient  considera- 
tion to  support  a  purchase  in  Padgett 
Y.  Laivrcnce,  10  Paige,  170;  while 
Love  v.  Taylor,  24  Mississippi,  567, 
went  still  further  in  the  same  direc- 
tion, by  deciding  that  the  considera- 
tion will  be  valuable,  whenever  the 
conveyance  is  made  in  absolute  satis- 
faction or  payment,  which  necessarily 
involves  the  extinguishment  of  the 
personal  liability  of  the  debtor,  and  of 
the  right  of  recourse  against  him  for  the 
debt ;  and  there  can  be  no  doubt  that 
advances  made  at  the  time,  will  operate 
as  a  purchase  pro  tanto,  of  property  or 
securities ;  transferred  as  'security  for 
their  repayment.  And  it  was  decided 
in  Gliddon  v.  Hxmt,  24  Pick.  221,  that 
when  a  creditor  made  a  further  loan 
to  his  debtor,  and  took  a  morts-ao-e 
from  the  latter  for  the  purpose  of  se- 
curing both  loan  and  debt,  he  became 
a  purchaser  of  the  mortgage  to  the 
full  amount  of  both ;  because  the  pre- 
sumption was,  that  he  had  parted  with 
his  money,  in  order  to  obtain  protec- 
tion for  the  antecedent  advances,  as 
well  as  for  those  made  at  the  time; 
Bagarly  v.  Gaithcr,  2  Jones,  Eq. 
80. 

Nearly   allied   to   this   qnestion,  is 
that  which  arises  where  a  creditor  suc- 


ceeds in  obtaining  a  judgment,  which 
takes  eifect  as  a  lien  on  the  laud  of  the 
debtor,  and  thus  converts  it  into  a  se- 
curity for  the  payment  of  the  debt. 
It  is,  however,  well  settled,  that  the 
acquisition  of  such  a  lien,  although 
without  notice,  is  not  to  be  regarded 
in  the  light  of  a  purchase,  or  as  enti- 
tling the  creditor  to  a  preference  over 
prior  equities,  and  unrecorded  con- 
veyances ;  Jackson  v.  Toion,  4  Cowen, 
599  ;  Jackson  v.  Post,  9  Id.  120;  15 
Wend.  588  ;  Bxichan  v.  Sumner,  2 
Barbour's  Chancery,  165  ;  White  v. 
Dcnman,  1  Ohio,  N.  S.  110;  Cole- 
man V.  Cock,  6  Randolph,  618  ;  Ash 
V.  Livingston,  2  Bay,  80;  3Iassey  y. 
Mllvain,  2  Hill's  Ch.  426 ;  Orth  y. 
Jennings,  8  Blackford,  420  ;  Williams 
V.  Hollingsicortli,  1  Strobhart's  Equi- 
ty, 103;  The  Bank  y.  Gourdin,  1 
Spear's  Equity,  20;  The  Bank  v. 
Camphell,  2  Richardson's  Equity, 
179 ;  Jackson  v.  Dubois,  4  Johnson, 
216;  Cover  v.  Black,  1  Barr,  493  ; 
Shryock  v.  Wagoner,  4  Casey,  430; 
Watkins  V.  Wassell,  15  Arkansas,  73, 
95 ;  the  distinction  being  between  a 
mortgagee  or  other  incumbrancer,  who 
advances  his  money  specifically,  on  the 
faith  of  the  land,  and  a  general  lien 
by  judgment  or  otherwise,  which  binds 
all  the  estate  of  the  debtor,  whether 
more  or  less,  without  special  reference 
to  any  particular  portion  ;  Brace  v.  The 
Duchess  of  Marlborough,  2  P.  Wms. 
491;  ante,  vol.  1,  599 ;  Conard  v.  The 
Atlantic  Ins.  Co.,  1  Peters,  384,  444 ; 
Martial  V.  Jackson,  3  Casey,  504; 
Cover  V.  Black ;  Kicrsted  v.  Avery, 
4  Paige,  14 ;  Mooney  v.  Dorsy,  7 
Smedes  &  Marshall,  22.  Thus  it  was 
held  in  Rogers  v.  Gibson,  4  Yeates, 
111,  and  Ifcister  v.  Fortner,  2  Bin- 
ney,  40,  that  a  judgment-creditor  was 


BASSET     V.     NOSWORTHY. 


109 


to  be  postponed  to  prior  unrecorded 
conveyances,  of  which  he  had  no  no- 
tice at  the  time  of  obtaining  the  judg- 
ment. And  although  a  judgment  has 
a  preference,  in  Pennsylvania  and 
Ohio,  over  unrecorded  mortgages; 
Semple  v.  Burd,  7  S.  &  R.  286 ; 
Friedly  v.  Hamilton,  17  Id.  70 ;  May- 
ham  v.  Coombs,  14  Ohio,  428;  and  in 
in  Massachusetts,  New  Hampshire, 
Maine,  Virginia,  North  Carolina,  Ken- 
tucky, Iowa,  Tennessee,  and  Alaba- 
ma, over  unrecorded  deeds  generally ; 
Davidson  v.  Cowen,  1  Devereux,  Eq. 
470  ;  Stanley  v.  Ferley,  5  Maine,  .399 ; 
Odiorne  v.  Mason, 9  New  Hampshire, 
24;  Coffin  v.  Eay,  1  Metcalf,  212; 
J/'  Clure  v.  Thistle  s  Ex'ors,  2  Grrat- 
tan,  182 ;  Hojjping  v.  Burnam,  2 
Iowa,  109 ;  Hays  v.  i/'  Guire,  8  Yer- 
ger,  92 ;  Miller  v.  Estell,  lb.  452  ; 
Edwards  v.  Brinher,  9  Dana,  69  ; 
3f'Cullongh  v.  SomerviUe,  8  Leigh, 
415;  Mallory  v.  Stodder,  6  Alaba- 
ma, 801 ;  Smith  v.  Lurch,  9  Id. 
208;  Center  v  The  Bank,  22  Id. 
743 ;  this  is  the  result  of  express  le- 
gislative declarations,  that  registry 
shall  be  essential  to  give  validity 
against  creditors,  and  not  because  a 
creditor  is  regarded  in  the  light  of  a 
purchaser;  Jacques  v.  Weeks,  7  Watts, 
261.  The  rule  applies  to  personal 
property  as  well  as  to  estates  in  land; 
and  an  equitable  lien  or  interest,  grow- 
ing out  of  the  sale  of  a  chattel,  before 
it  is  acquired  by  the  vendor,  will  be 
good  against  judgment-creditors  and 
assignees  in  bankruptcy,  when  it  might 
be  bad  against  ahona/ide  purchaser; 
Langton  v.  Horton,  1  Hare^  549; 
Mitcliell  v.   Winsloio,  2  Story,  630. 

The  reasoning  on  which  this  course 
of  decision  depends,  was  stated  with 
great  force  and  clearness,  in  Brace  v. 


The  Duchess  of  Marlborough,  2  Peere 
Williams,  491,  and  shows  conclusive- 
ly, that  it  would  be  unjust  and  unrea- 
sonable to  take  property  which  belongs 
in  right  and  equity  to  one  man,  for 
the  purpose  of  paying  a  debt  due  by 
another,  to  a  creditor,  who  has  not 
asked  or  obtained  a  specific  pledge  or 
appropriation,  and  who  has  relied  on 
the  general  solvency  and  ability  of  his 
debtor;  and  thus  make  the  law  do  a 
wrong  which  the  parties  themselves 
have  abstained  from  committing. 
Chancery,  therefore,  limits  the  hold  of 
a  judgment  to  the  real  interest  or  right 
of  the  defendant ;  ^yilkcs  v.  Harper, 
2  Barbour's  Ch.  338,  355 ;  White  v. 
Denman,  1  Ohio,  N.  S.  112;  and  will 
not  permit  it  to  prevail  against  a  prior 
lien  or  grant,  which  possesses  the  cha- 
racteristics necessary  to  render  it  bind- 
ing in  equity,  however  informal  or  de- 
fective it  may  be  at  law.  An  unre- 
corded deed  or  mortgage,  will  conse- 
quently have  priority  over  a  judgment, 
notwithstanding  a  statute,  which  re- 
quires all  conveyances  to  be  put  on 
record,  unless  the  object  of  the  legis- 
lature clearly  was  to  give  priority  to 
judgments  in  the  absence  of  a  record ; 
I'he  Bank  of  3Iichigan  v.  Carjjenter, 
7  Ohio,  21 ;  Lake  v.  Dove,  10  Id. 
415. 

But,  although  it  is  well  settled, 
that  a  judgment-creditor  cannot  be 
considered  as  a  purchaser,  or  as 
having  a  right  to  protection  against 
equities,  binding  on  the  debtor,  the 
position  of  a  purchaser  under  a  judg- 
ment is  more  doubtful,  and  presents  a 
question  of  great  importance.  This 
question  could  not  arise  under  the  com- 
mon law  which  provided  no  process 
for  the  sale  of  the  real  estate  of  the 
debtor,  and  limited  the  remedy  of  the 


no 


BONA     FIDE     PURCHASERS. 


creditor  to  obtaining  the  delivery  of  a 
mere  right  of  possession  under  an  ex- 
tent or  eligit,  until  the  debt  should 
be  satisfied  out  of  the  rents  and  pro- 
ceeds of  the  land  delivered.  This 
delivery  necessarily  pursued  the  power 
given  by  the  judgment,  and  put  the 
creditor  in  the  position  previously  oc- 
cupied by  the  debtor.  And  although 
equity  might  go  further,  and  direct  an 
absolute  sale  where  the  rents  and  pro- 
fits were  likely  to  prove  insufficient  for 
the  payment  of  the  debt,  yet  this  sale 
was  necessarily  subject  to  the  equi- 
table interests  of  third  persons.  But 
the  law,  in  this  country,  goes  fur- 
ther, and  gives  the  creditor  a  legal 
right  to  a  sale  of  the  lands  of  the 
debtor,  instead  of  limiting  him  to  a 
mere  possession  as  a  means  of  satis- 
fying the  debt.  The  question  is,  there- 
fore, presented,  whether  the  title  of  a 
purchaser  at  such  a  sale,  is  to  be  re- 
garded as  taken  under  a  legal  authority, 
limited  to  the  disposition  of  such  an 
interest  in  the  estate  of  the  debtor  as 
the  latter  could  legally  and  equitably 
have  disposed  of  himself,  or  as  stand- 
ing upon  the  footing  of  an  ordinary 
purchase,  and  therefore  valid  against 
equities  not  supported  by  notice.  It 
has  been  held  on  this  point,  in  North 
Carolina,  that  the  title  of  a  purchaser 
under  a  judgment  cannot  be  better 
than  that  of  the  parties,  through  whom 
he  claims,  and  that  whether  he  pur- 
chase with  or  without  notice,  he  will 
acquire  no  right  which  the  creditor 
could  not  enforce,  and  to  which  the 
debtor  was  not  entitled.  And  it  has 
been  decided  on  this  ground,  and  on 
the  general  principle,  that  the  pro- 
perty of  one  man  should  not  be  taken 
to  pay  the  debt  of  another,  that  an 
equitable  interest  in  land  will  follow 


the  legal  title  into  the  hands  of  a  pur- 
chaser under  an  execution  ;  Freeman 
V.  Hill,  1  Dev.  &  Bat.  Eq.  389;  Polk 
V.  Gallant,  2  Id.  395 ;  Freeman  v. 
Mehane,  2  Jones,  Equity,  44.  The 
law  is  held  the  same  way  in  South 
Carolina;  The  Bank  of  South  Caro- 
lina V.  Campbell,  2  Richardson's 
Equity,  179 ;  at  all  events,  when  the 
judgment-creditor  is  himself  the  pur- 
chaser; Williams  X.  Uollingsworth,  1 
Strobhart,  Eq.  103.  Whatever  may  be 
the  theoretical  soundness  of  this  course 
of  decision,  its  practical  effect  is  to 
put  judicial  sales  on  a  more  unfavor- 
able footing  than  any  others,  and  to 
subject  both  debtor  and  creditor  to  loss 
in  all  cases,  for  the  sake  of  an  occa- 
sional and  contingent  advantage  to 
third  persons.  And  although  such  a 
sale  is  the  act  of  the  law,  yet  that  ne- 
cessarily carries  with  it  the  assent  of 
the  parties.  The  weight  of  authority,  in 
this  country,  is  accordingly  the  other 
way,  and  in  favor  of  the  proposition, 
that  a  purchase  at  a  judicial  sale, 
stands  on  the  same  footing  with  a  pur- 
chase directly  from  the  debtor.  It  is 
held  therefore,  in  most  of  the  States 
of  the  Union,  that  a  purchaser  at 
sheriff's  sale,  will  take  the  land  dis- 
charged of  every  claim  or  title,  whe- 
ther arising  under  an  unregistered 
deed,  or  a  mere  equity,  of  which  he 
had  no  notice  at  the  time  of  the  pur- 
chase, and  which  would  be  invalid  as 
against  an  ordinary  purchaser;  Jack- 
son v.  Town,  4  Cowen,  509  ;  Jackson 
V.  Post,  9  Id.  120 ;  15  Wend.  588 
Jackson  V.  Chamberlain,  8  Id.  620 
Waldo  V.  Russell,  5  Missouri,  387 
Den  V.  Rickman,  1  Green,  43  ;  Scrih 
ner  v.  Lockxcood,  9  Ohio,  184;  The 
Ohio  Life  Ins.  Co.  v.  Ledijarcl,  8 
Alabama,  SGG ;    Orth  v.  Jcnninjs,  8 


BASSET     V.     NOSWORTHY. 

5 


111 


Blackford,  420  ;  Hehter  v.  Fortner,  2 
Binney,  40,  45 ;  Mann's  Appeal,  1 
Barr,  24 ;  Kellam  v.  Janson,  5  Har- 
ris, 467.  This  rule  applies,  even 
when  the  judgment-creditor  becomes 
the  purchaser,  because  the  money 
which  he  pays  goes  in  satisfaction  of 
the  debt ;  and  every  additional  bid  is 
necessarily  an  advantage  to  the  de- 
fendant in  the  judgment;  Wood  v. 
Chapin,  3  Kernan,  509. 

The  right  of  a  purchaser  as  such 
under  these  decisions,  can,  however, 
extend  only  so  far  as  he  has  purchas- 
ed without  notice.  But  even  when 
he  is  so  far  affected  with  notice  that 
his  purchase  affords  him  no  protec- 
tion, he  may  still  be  entitled  to  fall  back 
upon  the  rights  of  the  judgment-credi- 
tor; Henderson  v.  Downing,  24  Missis- 
sippi, 106 ;  Jacques  v.  Weeks,  7  Watts, 
261,  270 ;  ante,  69  ;  which,  as  we  have 
seen,  are  valid  in  some  of  the  States 
against  unrecorded  mortgages,  and  in 
others  against  all  unrecorded  convey- 
ances, whether  defeasible  or  absolute. 
It  is,  therefore,  important  to  deter- 
mine, whether  notice  which  undoubt- 
edly supplies  the  want  of  registry 
under  these  statutes  against  purcha- 
sers, will  have  the  same  effect  with 
respect  to  creditors.  There  can  be 
little  doubt,  that  it  will  have  the  same 
effect  in  both  cases,  when  given  be- 
fore the  character  of  creditor  or  pur- 
chaser has  attached,  and  will  prevent 
the  party  to  whom  it  is  given,  from 
acquiring  any  right  on  the  score  of  a 
subsequent  credit  or  purchase.  For 
if  he  goes  on  after  notice,  to  acquire 
an  interest,  or  occupy  a  position  in- 
consistent with  the  intei'est,  with 
which  he  has  been  made  acquainted, 
he  does  it  at  his  own  peril,  and  has 
no  right  to  throw  any  loss  which  may 


ensue  upon  other  persons  for  his  own 
exoneration ;  Prescott  v.  Heard,  10 
Mass.  60.  But  it  is  equally  well  set- 
tled, that  when  a  purchase  has  once 
been  completed,  and  the  character  of 
a  purchaser  acquired,  a  subsequent 
notice  cannot  interpose  any  moral  or 
equitable  bar  to  the  exercise  of  the 
rights  arising  under  the  purchase. 
And  the  rule  which  thus  applies  to 
the  case  of  a  purchaser,  would  seem 
equally  applicable  to  that  of  a  creditor, 
when  invested  by  statute,  with  a  right 
to  apply  the  property  of  his  debtor  to 
the  payment  of  the  debt,  notwith- 
standing an  unregistered  mortgage  or 
conveyance  to  third  persons.  For  as 
in  this  case  the  right  is  given  by  sta- 
tute to  creditors,  as  well  as  purchasers, 
it  cannot  be  denied  to  either,  unless 
something  is  shown  of  a  nature  to 
render  the  statute  inapplicable  ;  and 
as  a  subsequent  notice  is  insufficient 
for  this  purpose  in  the  case  of  a  pur- 
chaser, it  would  seem  it  cannot  be 
more  effectual  in  that  of  a  creditor. 
''  There  is  no  equity,"  said  Ruffin,  J., 
in  Davidson  v.  Cowan,  1  Devereux's 
Equity,  470,  "  against  a  creditor,  re- 
straining him  from  using  all  legal 
means  to  obtain  a  preference  and 
ultimate  satisfaction  of  his  debt.  The 
period  of  contracting  the  debt  is 
wholly  immaterial.  One  creditor  may 
justly  obtain  satisfaction,  although  he 
knows  that  he  thereby  deprives  his 
debtor  of  the  means  of  paying  a  debt 
previously  contracted.  Nothing  but 
the  actual  divesting  of  the  debtor's 
estate,  or  a  specific  valid  lien  on  it  at 
law,  can  defeat  a  creditor.  If  he  ob- 
tains his  execution  before  an  elder 
debt  is  ripened  into  judgment,  he 
may  satisfy  himself.  If  he  gets  the 
legal  preference  by  his  execution  be- 


112 


BONA     FIDE     PURCHASERS. 


fore  a  creditor  by  a  mortgage  perfects 
his  title  by  registration,  he  may  like- 
wise satisfy  himself.  Each  has  an 
equal  equity,  and  one  has  the  law. 
He  may  keep  it.  The  case  of  a  pur- 
chaser is  entirely  different.  He  has 
no  equity  if  he-buys  what  he  knows 
another  cannot  sell." 

It  was  consequently  held,  that  al- 
though, in  cases  not  within   the  re- 
cording acts,  a  mere  equity  is  good  in 
North  Carolina,  even  without  notice, 
as    against   judgment    creditors,   and 
purchasers   under    a    judgment,   yet 
that  where  a  deed  is  avoided  by  those 
acts  as  against  creditors,  it  cannot  be 
rendered  valid  as  to  them,  or  purcha- 
sers under  them,  by  notice  given  after 
the  debt  originated.     The  same  point 
was  decided  in  Davey\.  Littlejohn,  2 
Iredell's   Equity,  495;  Pendleton  v. 
Batfon,  3   Connecticut,  406;  Wash- 
inr/fon's  Lessee  v.  Trouadah,  Martin  & 
Yerger,  385  ;  and  LiUard  v.  Ruckers, 
9  Yerger,  64.     In  all  cases,  therefore, 
within  the  scope  of  this  doctrine,  a 
judgment-creditor  stands  on  the  same 
footing  with   a   purchaser,  who   has 
completed  his  purchase,  and  cannot 
be  prevented  from  enforcing  the  rights 
given  him  by  statute,  by  notice  of  the 
claims  of  third  persons.     This  view  of 
the  law  is  sustained  by  the  decisions 
in  some  of  the  other  states  of  the 
Union,  in  which   it   has  been   held, 
that  when  creditors  are  preferred  by 
statute  to  unrecorded  deeds  or  mort- 
gages, they  cannot  bo  postponed  by  a 
notice  given  subsequently  to-  the  pe- 
riod at  which  the  character  of  creditor 
was  acquired;  Gucrrant  v.  Anderson, 
4  Randolph,  208.     The  law  of  Penn- 
sylvania stands  on  the  same  footing 
as  it  regards  unrecorded  mortgages; 
Jacques  v.  Weeks,  7  Watts,  261,  270; 


Hulings   V.    Guthrie,    4    Barr,    123 ; 
Muse  V  Lettcrman,  13  S.  &  R.  167 : 
Solms  V.  M'CuUough,  5  Barr,  478, 
where   a   different   opinion   was    ex- 
pressed, having  been  overruled  by  the 
recent  ease  of   LJder  v.  Hutchinson, 
11  Harris,  110,  and  the  law  brought 
back  to  the  point  where  it  had  been 
placed  by  the  earlier  decisions.     In 
Uhler  V.  Hutchinson,  however,  the 
court  declined  to  express  an  opinion 
as  to  the  effect  of  notice  before  the 
judgment  is    obtained    or   rendered; 
but  the  true  rule  on  this  head  would 
seem  to  be  that  laid  down  in  Muse  v. 
Lettcrman,  where   it  was    said    that 
notice  came  too  late  after  credit  had 
been    given,  and    could  not    deprive 
the  creditor  of  the  right  to  enforce 
the  payment  of  a  debt,  which  had  been 
fairly  contracted,  and  might  be  collect- 
ed, by  the  use  of  every  means  which 
the  law  afforded.      "  The  intention," 
said  Duncan,  J.,  who  delivered  the 
opinion  of  the  court,  "of  the  regis- 
tering act,  as  to  mortgages,  would  be 
entirely  frustrated,  if  notice  after  sub- 
sequent debts  contracted,  or  security 
given,    were   to   postpone.      If   one, 
having  notice  of  an  unregistered,  un- 
satisfied mortgage,  colludes  with  the 
mortgagor,  and  gives  him  a  credit  for 
the  purpose  of  defeating  siich  mort- 
gage, and  obtains  a  security  on  the 
mortgaged  premises,  this  would  be  a 
manifest  fraud,  and  ought  not  to  pre- 
vail.    But  such  fact  was  not  offered 
to  be  proved,  but  merely  that  Smith 
had  notice  of  the  unrecorded  mort- 
gage, after  the  debt  was  contracted, 
and  after  he  had  obtained  his  judg- 
ment bond,  but  before  it  was  entered 
on    record.     His    equity  is  equal,  if 
not   superior   to   the    equity  of   the 
mortgagee.     He  has  the  law  on  his 


BASSET     V.     NOSWORTHY. 


113 


side,  and  liis  lien  ouglit  to  prevail. 
Where  a  man  is  affected  with  notice  of 
an  unregistered  instrument,  which  the 
law  requires  should  be  registered,  it 
is  on  the  ground  of  fraud.  A  man 
cannot  be  said  to  be  guilty  of  fraud, 
who  obtains  security  for  a  debt  con- 
tracted before  he  had  notice,  and 
equity  will  not  take  from  a  fair  credi- 
tor, any  legal  priority,  or  even  a  plank, 
which,  in  a  struggle  between  him  and 
another  creditor,  he  has  laid  hold 
of  as  a  security."  This  argument 
cannot  be  answered  by  the  remark, 
that  registry  will  be  good  at  any  time 
before  the  judgment  is  actually  en- 
tered, because  registration  derives  its 
force  from  express  enactment,  while 
notice  can  never  be  effectual,  unless 
the  circumstances  are  such  as  to 
render  it  binding  on  the  conscience 
of  him  who  receives  it.  The  doc- 
trine held  in  Davidson  v.  Cov;an,  is 
also  supported  by  the  cases  in  those 
states,  where  the  recording  acts,  al- 
though avoiding  unregistered  deeds 
against  creditors,  expressly  except  all 
persons  with  notice,  from  the  benefit 
of  the  enactment.  It  is  held  in  gene- 
ral, that  the  notice  referred  to  in  these 
statutes,  must  be  understood  as  notice 
before  a  lien  has  been  acquired  for  the 
debt,  and  that,  although  a  general  cre- 
ditor, will  be  prevented  by  notice  from 
acquiring  a  lien  as  against  the  right, 
which  the  notice  sets  forth,  yet  that 
where  such  a  lien  has  been  acquired 
by  attachment,  it  cannot  be  divested 
by  the  retrospective  effect  of  a  subse- 
quent notice;  Stanly  v.  Perley,  5 
Maine,  369 ;  Emmerson  v.  Littlefield, 
12  Id.  148 ;  Matthews  v.  Demeritt,  22 
Id.  312;  Coffin  v.  Ray,  1  Metcalf, 
212;  Ctirtis  v.  3lHndy,  3  Id.  405; 
Prcist  y.  Bice,  1  Pick.  164;  Carta- 
VOL.  II. — 8 


V.  Chamjiion,  8  Conn.  548 ;  Rojjers 
V.  Jones,  8  New  Hampshire,  204 ; 
Garwood  v.  Garwood,  4  Halsted, 
193.  In  Ohio,  unrecorded  mortgages 
are  absolutely  void  as  against  purcha- 
sers and  creditors,  whether  claiming  by 
judgment  or  under  an  assignment, 
and  cannot  be  set  up  by  the  most 
explicit  notice;  Stanley  v.  Roberts, 
13  Ohio,  148  ;  ]Yhite  v.  Denman,  16 
Id.  59  ;  1  Ohio,  N.  S.  110  ;  Bloom  v. 
Norjgle,  4  Id.  45. 

It  has,  however,  been  held  by  the 
Supreme  Court  of  Alabama,  that 
where  a  statute  renders  unregistered 
deeds  void  against  creditors  and  pur- 
chasers, without  making  any  excep- 
tion, in  cases  of  notice,  this  exception 
will,  notwithstanding,  be  implied,  and 
notice  given  to  a  creditor  before  he 
has  obtained  judgment,  will  prevent 
the  lien  of  the  judgment  from  attach- 
ing, although  it  will  be  ineffectual  if 
not  given  until  after  the  lien  has  at- 
tached; Daniels  v.  Sorrells,  9  Ala- 
bama, 436 ;  The  Ohio  Life  Ins.  Co.  v. 
Ledyard,  8  Id.  866 ;  Burt  v.  Cassity, 
12  Id.  734 ;  Center  v.  The  Bank,  22 
Id.  743.  A  similar  view  of  the  law 
prevails  in  Mississippi ;  Dixon  v.  Doe, 
1  Smedes  &  Marshall,  70  ;  Taylor  v. 
Uck/ord,  11  Id.  21 ;  Clement  v.  Rich, 
9  Id.  535 ;  Walker  v.  Gilbert,  Free- 
man, 85;  and  while  notice  before 
judgment  may  be  good,  notice  after 
judgment,  will  be  equally  ineffectual, 
whether  given  to  the  judgment-credi- 
tor or  to  a  purchaser  at  a  sale  under 
the  judgment,  whose  rights  necessa- 
rily rise  as  high  as  those  of  the  judg- 
ment-creditor; Henderson\.  Downing, 
29  Mississippi,  106.  And  the  courts 
of  Kentucky,  after  several  fluctuating 
decisions,  in  which  they  held  that 
subsequent  notice  would,  Morton  v. 


114 


BONA     FIDE     PURCHASERS. 


Robards,  4  Dana,  258,  and  would  not 
bind  a  judgment-creditor,  Helm  v. 
Lotjan's  Heirs,  4  Bibb,  78  ;  Graham 
V.  Samuel,  1  Dana,  166,  have  at  last 
settled  on  the  conclusion,  that  what- 
ever may  be  its  effect  in  equity,  it 
must  be  ineffectual  at  law;  Edwards 
V.  Drinher,  9  Dana,  69. 

The  distinction  taken  in  Alabama, 
between  notice  before  and  after  judg- 
ment, is  undoubtedly  so  far  sound,  that 
although  a  creditor  is  necessarily  injur- 
ed, where  notice  is  allowed  to  have  a  re- 
trospective effect,  for  the  purpose  of  de- 
feating the  lien  of  a  judgment,  he  can 
sustain  no  such  injury  where  the  notice 
is  given  before  a  judgment,  or  other 
specific  hold  on  the  estate  of  the 
debtor  has  been  obtained.  When, 
therefore,  the  absence  of  notice  is 
made  essential  by  the  express  words 
of  a  registry  act,  it  is  altogether  rea- 
sonable to  hold  that  notice  before  a  lien 
had  been  acquired  is  intended.  But 
this  is  not  sufficient  to  show,  that 
where  notice  is  not  mentioned  in  the 
Act  itself,  it  should  be  introduced  into 
it  by  construction,  as  against  parties 
claiming  as  creditors.  It  is  undoubt- 
edly well  settled  in  this  country,  that 
such  a  construction  will  be  made  as 
against  purchasers,  because  a  pur- 
chaser commits  a  fraud  by  going  on 
with  the  purchase  after  he  has  re- 
ceived notice.  But  it  has  already 
been  pointed  out,  that  to  make  this 
ground  applicable  to  the  case  of  a 
creditor,  it  must  appear  that  the  debt 
was  contracted  after  the  notice  was 
given.  And  from  the  reasoning  em- 
ployed in  Davidson  v.  Cowan,  it  is 
obvious  how  wide  is  the  distinction 
between  the  conduct  of  a  creditor,  in 
enforcing  a  legal  right  for  the  purpose 
of  obtaining  payment  of  a  debt  con- 


tracted before  notice,  and  that  of  a 
purchaser  who  has  no  interest  at  risk, 
and  who  goes  on  wilfully  after  notice, 
to  acquire  an  interest  inconsistent  with 
the  interest  of  others.  It  may,  no 
doubt,  be  said,  as  it  was  in  Daniels  v. 
Sorrell,  that  there  is  no  difference  be- 
tween taking  a  mortgage  as  security 
for  an  antecedent  debt,  and  obtaining 
alien  by  judgment;  and  that  if  a 
mortgagee  is  to  be  postponed  under 
these  circumstances,  by  notice  of  a 
prior  unregistered  conveyance,  the 
result  should  be  the  same  in  the  case 
of  a  judgment-creditor.  And  in  3Iay- 
liam  V.  Combs,  14  Ohio,  428,  this 
reasoning  was  held  to  justify  the  con- 
clusion, that  a  creditor  who  takes  a 
mortgage  as  security,  is  not  bound  by 
notice  of  a  prior  unrecorded  mortgage. 
It  should,  however,  be  remembered, 
that  the  execution  of  a  mort2:as;e  of 
land,  whether  as  security,  or  other- 
wise, which  has  previously  been  con- 
veyed to  a  third  person,  is  an  un- 
doubted fraud  on  the  part  of  the  mort- 
gagor, if  not  on  that  of  the  mortgagee, 
and  that  a  transaction  which  is  fraud- 
ulent on  one  side,  cannot  be  innocent 
on  the  other,  where  a  knowledge  of 
its  real  nature  exists  on  both.  But 
where  a  creditor  obtains  a  lien  in  the 
course  of  adversary  proceedings  against 
the  debtor,  no  wrong  can  be  imputed 
to  either  party,  and  there  is  no  reason 
why  the  lien  thus  created  should  not 
be  carried  to  the  full  extent  allowed 
by  the  law.  It  may,  however,  be  ad- 
mitted, that  the  conduct  of  a  creditor 
who  takes  a  security  for  his  debt,  which 
he  knows  that  the  debtor  ought  not 
to  offer,  is  not  marked  with  the  wilful 
wrong  which  characterizes  that  of  a 
purchaser,  who  thrusts  himself  into  a 
purchase,  not  for  the  purpose  of  pro- 


) 


BASSET     V.     NOSWORTHY. 


11^ 


tecting  an  existing  interest,  but  for 
that  of  acquiring  a  new  one,  which 
cannot  be  made  good  without  inflict- 
ing a  corresponding  loss  on  other  per- 
sons. Plumh  V.  Fluitt,  2  Anstruther, 
432. 

It  has  been  held  in  Pennsylvania, 
that  a  judgment  against  an  unrecorded 
equity,  arising  from  an  agreement  for 
the  purchase  and  sale  of  land,  will 
have  a  preference  over  a  mortgage 
executed  by  the  vendee  after  he  has 
obtained  a  deed  of  conveyance,  unless 
the  mortgage  is  limited  to  the  price 
of  the  land,  and  given  simultaneously 
with  and  on  the  faith  of  the  transfer 
of  the  legal  title,  so  that  the  whole 
forms  one  transaction,  and  stands  on 
the  same  footing  as  if  the  land  had 
been  mortgaged  back  to  the  vendor  for 
the  purchase-money ;  Li/nch  v.  Dearth, 
2  Penn.  R.  101;  Foster's  Appeal,  3 
Barr,  79;  CamphelVs  Appeal,  6  Ame- 
rican Law  Register,  764.  Thus,  in 
Foster's  Appeal,  and  Lynch  v.  Dearth, 
a  mortgage  given  by  a  vendee  after 
the  acquisition  of  the  legal  title,  was 
postponed  to  a  judgment,  which  had 
been  rendered  against  him  while  his 
interest  was  merely  equitable,  without 
anything  to  show  that  the  mortgagee 
knew  of  the  equity  at  the  time  when 
the  mortgage  was  executed ;  while  in 
Campbell's  Appeal  the  court  seem  to 
have  been  ready  to  give  a  similar  pre- 
ference under  circumstances  nearly 
the  same  to  a  mechanics'  lien.  This 
course  of  decision  goes  to  the  opposite 
extreme  from  Sergeant  v.  Ingersoll, 
ante,  98,  and  attributes  an  effect  to  the 
entry  of  a  judgment,  AAhich  would  be 
denied  to  a  conditional  or  absolute 
purchase.  Claims  arising  through  or 
under  the  holder  of  an  equity,  are  ne- 
cessarily subordinate  to  a  subsequent 


conveyance  of  the  legal  title,  and  this 
is  doubly  true  when  the  latter  is  de- 
duced regularly  of  record,  while  the 
equity  is  unrecorded.  Had,  there- 
fore, the  question  arisen  out  of  a 
grant  made  by  the  vendee,  and  not  on 
a  judgment  obtained  against  him,  the 
grantee  must  necessarily  have  yielded 
to  the  mortgage;  and  the  rights  of  a 
judgment-creditor,  far  from  rising 
higher  than  are  generally  inferior  to 
those  of  a  grantee  or  purchaser.  It 
is  well  settled,  that  a  search  for  liens  • 
or  conveyances  need  not  be  prosecuted 
further  than  the  period  at  which  the 
title  vested  of  record  in  the  party 
against  whom  the  search  is  made, 
ante,  70,  and  it  would  seem  plain  that 
there  can  be  no  certainty  or  safety  in 
the  transfer  or  acquisition  of  land,  if 
a  grantee  can  be  bound  or  prejudiced 
by  the  acts  or  defaults  of  the  grantor 
prior  to  the  acquisition  of  the  title 
passed  by  the  grant.  And  the  effect 
of  this  course  of  decision  must  be 
to  compel  purchasers  to  carry  back 
the  search  for  judgments;  and  as  it 
would  seem,  for  deeds  and  mortgages 
for  an  indefinite  period,  except  where 
some  statutory  limitation  intervenes, 
against  each  successive  owner  of  the 
estate  purchased,  in  order  to  guard 
against  the  possibility  of  his  having 
had  an  equity  anterior  to  the  period  at 
which  he  obtained  a  conveyance,  and 
having  thus  subjected  the  legal  title 
when  acquired,  to  antecedent  charges 
or  encumbrances  on  the  equity.  Fos- 
ter's Appeal,  and  Lynch  v.  Dearth, 
would  therefore  seem  equally  repug- 
nant to  the  principles  of  the  record- 
ing acts,  and  to  those  which  govern 
the  relation  between  legal  and  equit- 
able estates  and  titles,  and  would  pro- 
bably not  be  followed  as  law  beyond 


116 


BOXA     FIDE     PURCHASERS. 


the  limits  of  the  state  in  which  they 
were  decided. 

It  is  well  settled,  moreover,  that  to 
entitle  a  purchaser  to  protection,  the 
consideration  of  the  purchase  must  not 
only  he  valuable,  but  must  have  been 
wholly  or  partially  paid  or  executed; 
Yattier  v.  Hude,  7  Peters,  252 ;  Dos- 
ivell  V.  Buclianan' s  Ex'ots,  3  Leigh, 
362;  Duncan  v.  Johnson,  2  English, 
190 ;  Dillard  v.  Crocker,  1  Spear's 
Equity,  20 ;  Bush  v.  Bush,  3  Strob- 
hart's  Equity,  131 ;  Williams  v.  Kil- 
lingsworth,  1  Id.  103 ;  Kyle  v.  Tail's 
Adm'r,  6  Grrattan,  41;  Cole  v.  Scott, 
2  Washington,  141 ;  Frost  v.  Buck- 
man,  1  Johnson,  Ch.  288 ;  Cook  v. 
Broncmgh,  8  English,  190 ;  although 
payment  need  not  be  made  at  the 
time  of  the  purchase,  if  it  take  place 
before  that  of  notice ;  Wander  v.  Wins- 
loio,  1  Sandford,  Ch.  430.  This  re- 
sults from  the  obvious  equity  of  hold- 
ing, that  when  the  only  feature  of  the 
transaction  is  the  transfer  of  the  title 
from  one  party  to  another,  all  the 
equities  which  attached  to  it  in  the 
hands  of  the  grantor,  will  follow  it 
into  those  of  the  grantee,  and  that  he 
cannot  claim  exemption  from  them, 
unless  there  has  been  some  payment 
or  expenditure  on  his  part,  without 
notice  of  their  existence,  which  would 
render  it  inequitable  to  enforce  them 
as  against  him.  But  while  the  Eng- 
lish rule  requires,  that  to  raise  such  a 
countervailing  equity  there  should 
have  been  payment  of  all  the  money 
due  for  the  purchase,  our  co'urts  are 
divided  in  opinion,  and  while  some  of 
them  refuse  to  consider  anything  short 
of  full  payment  sufficient,  others  hold 
that  partial  payments  entitle  the  pur- 
chaser to  reimbursement,  or  even  to 
be  sustained  in  the   purchase.     The 


opinion  which  holds  that  there  must 
be  payment  in  full  before  notice,  is 
sustained  by  the  cases  of  Wormlcy  v. 
Wormley,  8  Wheaton,  421,  and  Wood 
v.  Mann,  1  Sumner,  506  ;  as  well  as  by 
several  of  the  authorities  above  cited, 
which  treat  the  English  requisites  to 
a  defence  resting  on  a  purchase  for 
valuable  consideration,  as  essential  in 
this  country.  The  merit  of  qualifying 
what  seems  a  harsh  and  inequitable 
doctrine,  appears  to  rest  with  the 
Supreme  Court  of  Pennsylvania,  who 
decided,  in  Youst  v.  Martin,  3  S.  &  R. 
423,  that  payment  of  part  of  the  pur- 
chase-money before  notice,  although 
not  sufficient  to  invest  the  vendee 
with  the  character  of  a  hona  fide  pur- 
chaser as  it  regards  the  estate  pur- 
chased, gave  him  a  right  to  invoke  the 
aid  of  the  equitable  principle,  that  he 
who  would  claim  equity,  must  do  it, 
and  require  reimbursement  from  the 
rightful  owner,  as  the  condition  of 
giving  way  to  his  title.  Although 
some  doubt  was  thrown  on  this  case 
in  Leicis  V.  Bradford,  10  Watts,  67, 
it  was  fully  recognized  in  Bellas  v. 
McCarthy,  10  Watts,  13,  and  i(  must 
be  regarded  as  ruling  the  law  on  this 
point  in  Pennsylvania;  Juvenal  v. 
Jackson,  2  Harris,  519 ;  Uhrich  v. 
Beck,  1  Id.  631 ;  4  Id.  499,  while  the 
cases  in  that  state  also  establish  that 
the  expenditure  of  money  in  making 
improvements  on  the  land,  will  con- 
stitute a  purchase  for  value,  even 
when  no  part  of  the  purchase-money 
has  actually  been  paid  ;  Boggs  v.  Yar- 
ner,  6  W.  &  S.  469.  There  can  be 
little  doubt  that  equity  will  now  give 
protection  in  some  form  in  this  countrj'', 
for  all  payments  and  expenditures  ac- 
tually made  before  notice,  although 
payment  in  full  may  be  and  no  doubt 


BASSET     V.     NOSAVORTHY. 


117 


is  necessary  to  constitute  a  good  bar 
by  plea  to  the  bill ;  The  Farmer' s  Loan 
Co.  V.  Malthy,  8  Paige,  563 ;  Doswell 
V.  Buchanan's  Ex'ors,  3  Leigh,  361 ; 
Frost  V.  Buchnan,  1  Johnson,  Ch. 
288 ;  Everts  v.  Agnes,  4  Wisconsin, 
343 ;  Flagg  v.  Mann,  2  Sumner,  486; 
and  in  Flagg  v.  Mann,  the  court  would 
seem  to  have  entertained  the  opinion, 
that  part  payment  of  the  purchase- 
money  entitled  the  purchaser  to  the 
land  itself,  subject  to  a  lien  for  the 
part  unpaid,  in  favor  of  the  holder  of 
the  antecedent  equity  which  the  pur- 
chase had  defeated.  But  it  is  plain, 
that  as  equity  will  afford  a  purchaser 
protection  as  against  a  vendor  who 
has  sold  in  fraud  or  in  contempt  of 
the  trust,  by  enjoining  the  collection, 
or  compelling  the  surrender  of  a  bond 
or  judgment  given  or  obtained  for  the 
pui'chase-money,  the  right  to  relief 
against  the  cestui  que  trust,  must 
in  general  be  limited  to  compensation 
and  reimbursement  for  the  amount 
actually  expended  on  the  land  or 
paid  for  it ;  Beck  v.  Uhrich,  1  Har- 
ris, 639 ;  4  Id.  499 ;  KunJde  v.  Wels- 
herger,  6  "Watts,  126.  The  cases  may 
perhaps  be  reconciled  with  each  other 
and  with  principle,  by  the  distinction, 
than  when  such  a  defence  is  set  up  by 
plea,  or  under  the  modern  practice  in 
this  country,  by  answer,  as  a  bar  to 
discovery,  it  must  have  all  the  requi- 
sites which  are  essential  to  its  validity 
in  England,  but  that  less  may  be  suf- 
ficient to  entitle  the  defendant  to  pro- 
tection when  a  discovery  has  been 
made,  and  when  the  case  is  before  the 
court  for  a  hearing  on  the  merits; 
Vi'ood  V.  Mann  ;  Flagg  v.  Mann. 

It  is  held,  moreover,  both  in  this 
country  and  in  England,  that  actual 
payment  is  in  general  necessary  to  the 


character  of  a  purchaser  for  valuable 
consideration,  and  that  giving  a  secu- 
rity or  executing  an  obligation  for 
payment,  will  not  be  sufficient;  High 
v.  Batte,  10  Yerger,  555 ;  Christie  v. 
Bishop,  1  Barbour,  Ch.  105;  Mur- 
ray ^r.  Ballou,  1  Johnson,  Ch.  566; 
Heatley  v.  Finster,  2  Id.  15 ;  Christie 
V.  Bishoj),  1  Barbour,  Ch.  105 ;  Jack- 
son V.  Cadicell,  1  Cowen,  622 ;  Jeioett 
V.  Palmer,  7  Id.  65,  265 ;  M'Bee  v. 
Loftis,  1  Strobhart's  Equity,  90; 
Hunter  v.  Sumrall,  3  Littell,  62 ; 
Harris  v.  Norton,  16  Barb.  264 ;  Pat- 
ten V.  3Ioore,  32  New  Hampshire,  382 ; 
because  equity  can  be  done  under  these 
circumstances  at  the  expense  of  the 
vendor,  without  taking  anything  from 
those  whom  he  has  wronged  by  the 
sale;  Becky.  Uhrich.  Payment  in 
the  bills  or  notes  of  third  persons, 
will,  however,  be  equivalent  in  most 
cases  to  actual  payment ;  Jewett  v. 
Palmer.  And  the  same  effect  would 
seem  to  be  due  to  payment  in  the  notes 
of  the  purchaser,  if  negotiable  in  their 
character,  and  actually  negotiated  so 
as  to  render  him  liable  to  pay  them  at 
all  events.  This  was  so  held  in  Frost 
V.  Beehnian,  and  again  in  Freeman 
V.  Denning,  3  Saudford,  Chancery, 
327,  where  the  notes  given  for  the 
purchase  were  negotiated  by  the  ven- 
dor before  notice,  and  paid  by  the  pur- 
chaser afterwards.  These  decisions  co- 
incide with  the  suggestion  that  equity 
refuses  to  regard  a  security  given  for 
the  price  of  land  as  equivalent  to  ac- 
tual payment,  because  it  can  afford  re- 
lief for  a  failure  of  title,  when  there  is 
a  mere  obligation  for  the  payment  of 
the  purchase-money,  but  not  when  it 
is  actually  paid.  But  a  mere  failure 
of  title  seems  not  to  be  a  sufficient 
ground  for  equitable   relief,  when  a 


118 


BOXA     FIDE     PURCHASERS. 


conveyance  lias  been  actually  made, 
and  a  bond  or  note  given  in  payment; 
and  hence,  if  the  vendee  be  obliged  to 
surrender  his  purchase,  under  these 
circumstances,  to  prior  claimants,  he 
may  be  exposed  to  the  loss  both  of  the 
money  and  the  land ;  Rawle  on  Cove- 
nants for  Title,  607,  2d  ed.    This  may 
the  more  readily  happen,. because  the 
doctrine  of  constructive  notice,  which 
is  conclusive  against  the  vendee  in  all 
questions  arising  between  himself  and 
third  persons,  will  not  be  conclusive 
in  his  favor  as  against  the  vendor,  who 
can    only  be    charged  with  fraud  or 
misrepresentation  by  proof  of  actual 
knowledge   or    notice;     Champlin  v. 
Lai/tin,  18  Wend.   407.     It  would, 
therefore,  seem  altogether  reasonable, 
to  carry  the  distinction  taken  in  Frost 
V.  Beekman,  sufficiently  far  to  enable 
a  vendee,  who  has  entered  into  obli- 
gations for  the  payment  of  the  pur- 
chase-mouey,  by  which    he   will   be 
absolutely  bound,   notwithstanding  a 
failure  of  the  title  for  which  they  were 
given,   to   obtain  an  indemnity  from 
claimants  under  prior  equities,  before 
surrendering  the  land  in  their  favor. 
Such,  no  doubt,  is  the  sense  which 
should  be  attached  to  the  declaration 
of  the  Supreme  Court  of  Pennsylvania, 
in  G'dday  v.  WaUon^  5  S.  &  11.  267, 
that  where  the  vendee  is  bound  to  pay 
the  purchase-money,  the  time  of  pay- 
ment is   immaterial.     And  the  same 
equitable  considerations  which  induced 
this  course  of  decision,  have  led  that 
court  also  to  determine,  that  expendi- 
tures made  by  the  vendee  on  the  pre- 
mises in  good  faith,  for  which  he  must 
necessarily  be  without  remedy  against 
the  vendor,  will  entitle  him  to  protec- 
tion as  a   purchaser  for  value,  even 


when  there  has  been  no  actual  payment 
of  the  purchase-money;  Yomt  v.  Mar- 
tin ;  Boijgs  V.  Tamer,  6  W.  &  S.  469. 
There  is,  however,  the  less  reason 
for  giving  a  vendee  equitable  relief  as 
against  third  persons,  in  most  cases  in 
Pennsylvania,  that  the  courts  there 
have  already  enlarged  it  in  his  favor 
against  the  vendor,  and  will  in  general 
exonerate  a  purchaser,  from  the  pay- 
ment of  any  security  given  for  the  pur- 
chase-money of  land,  from  which  he  has 
been  evicted  in  consequence  of  a  failure 
of  title.  Yet  in  Bellas  v.  W-Carty, 
10  Watts,  13,  the  Supreme  Court  of 
that  state,  took  a  further  step  in  favor 
of  purchasers,  by  deciding,  that  when 
the  whole  of  the  purchase-money  ab- 
solutely due  at  the  time  of  the  pur- 
chase has  been  paid,  the  eflPect  of  the 
payment  will  not  be  invalidated  by  the 
fact,  that  there  is  a  further  sum  pay- 
able on  a  contingency  which  remains 
unpaid.  From  this  decision  Ken- 
nedy, J.,  dissented,  on  the  ground, 
that  unless  the  transaction  has  been 
broueht  to  a  conclusion,  so  that  noth- 
ing remains  open  or  unperformed  on 
either  side,  the  purchaser  can  claim 
nothins  more  than  the  reimbursement 
of  his  actual  expenditure,  and  is  bound 
to  surrender  the  land  itself  to  the 
rightful  owner. 

But  whatever  the  effect  of  the  quali- 
fications attached  in  this  country  to 
the  English  rule,  that  notice  will  in- 
validate the  transaction  at  any  time 
before  its  completion,  in  protecting 
the  purchaser  to  the  extent  of  all  pay- 
ments made  before  notice,  it  is  cer- 
tain that  he  will  not  bo  protected  as 
to  those  which  he  may  make  after- 
wards, and  that  from  the  moment  of 
notice  he  will  be  bound  to  take  no 


BASSET     V.     NOSWORTHY. 


119 


step  inconsistent  with  tlie  rights  with 
which  he  has  been  made  acquainted, 
unless  essentially  necessary  for  the 
protection  of  those  which  he  had  pre- 
viously acquired ;  Harper  v.  Reno, 
Freeman,  323 ;  Frost  v.  BeeJcman,  1 
Johnson,  Ch.  288.  He  will,  therefore, 
be  bound,  whether  claiming  as  vendee 
or  mortgagee,  to  hold  all  that  remains 
unpaid,  for  the  benefit  of  the  parties 
rightfully  entitled,  and  all  future  pay- 
ments to  the  vendor  or  mortgagor,  will 
be  regarded  as  wrongful,  or  at  least, 
as  giving  no  claim  to  indemnity  in  a 
court  of  equity,  or  on  equitable  prin- 
ciples ;  Frost  V.  Beekman ;  Jewett  v. 
Palmer;  Youst  v.  Martin ;  Flagg  v. 
Mann  ;  Fubank  v.  Preston,  8  Monroe, 
292  J  Woods  V.  The  Bank  of  Ken- 
tucky,  lb.  194;  Leggett  v.  Wall,  2 
A.  K.  Marshall,  149  ;  Curtis  v.  Hitch- 
cock, 10  Paige,  399;  Uhrich  v.  Beck, 
1  Harris,  636 ;  4  Id.  499. 

The  rule  which  requires  actual  pay- 
ment to  give  a  right  to  relief,  on  the 
ground  of  a  purchase,  of  course  does 
not  apply  as  between  vendor  and  ven- 
dee, unless  there  has  been  a  default  in 
not  making  payment;  and  in  Stair  v. 
Strong,  2  Sandford,  Chancery,  139,  it 
was  held  equally  inapplicable  in  cases 
arising  between  a  vendee,  and  parties 
claiming  under  subsequent  equities  or 
encumbrances  created  by  the  vendor. 
But  however  this  may  be,  when  the 
question  is  one  of  mere  or  absolute 
right,  it  would  seem  that  whenever  a 
claim  is  set  up  to  exemption,  from  the 
ordinary  rules  of  equity  as  to  discovery, 
on  the  ground  of  a  purchase,  it  must 
be  supported  by  all  the  averments 
which  are  ordinarily  necessary  to  such 
a  defence,  whether  the  equity  of  the 
defendant  be  prior  or  subsequent  in 
date  to  that  of  the  plaintiflf. 


To  entitle  a  purchaser  to  protection 
under  the  recording  acts  of  this  coun- 
try, against  unrecorded  conveyances, 
there  must  be  an  actual  purchase,  and 
not  a  mere  transfer  or  assignment  of 
the  title ;  Martin  v.  Sale,  1  Bailey's 
Equity,  1.     But  it    does  not  follow, 
that  to  obtain  protection  of  those  acts, 
all  the  requisites  must  exist,  which 
are  essential  to  the  right  to  equitable 
protection^   and    there    can    be    little 
doubt,  that  if  the  consideration   be 
valuable,  it  may  be  wholly  or  partially 
executory  or  unexecuted.     In  Jack- 
son V.   Wlnsloio,  9  Cowen,  13^  the  as- 
sumption of  a  debt  due  by  the  grantor, 
was  held  a  sufficient  consideration  to 
render   the    grantee  a   purchaser  for 
value,  within  the  meaning  of  the  re- 
cording act  of  New  York.    And  what- 
ever  may   be    the    general    rule   in 
equity,  it  is  difficult  to  believe  that 
a  purchaser  by  deed,  duly  recorded, 
should  be  deprived  of  his  purchase, 
in  favor   of   an    unrecorded   convey- 
ance, and  turned  over  to  a  personal 
action    against    the    vendor,    merely 
because  part  of  the  purchase-money 
remains    unpaid,    or   the    legal    title 
unconveyed.      Under   these    circum- 
stances, the  purchaser  relies  on  a  sta- 
tutory right,  not  on  a  mere  claim  to 
equitable  relief,  and  is  at  least  entitled 
to  compensation,  if  to  nothing  more. 
This  view  was  taken  by  the  Supreme 
Court  of  Alabama,  in  Duphey  v.  Fre- 
nage,  5  Stewart  &  Porter,  215,  where 
it  was  decided,  that  notice  of  an  un- 
recorded mortgage,   given  after  the 
execution  of  a  deed  to  a  purchaser, 
but  before  payment  of  the  whole  of 
the  purchase-money,  although  suffici- 
ent to  keep  the  lien  of  the  mortgage 
alive,  could  not  free  it  from  the  claim 
of  the  purchaser  to  reimbursement. 


120 


BONA     FIDE     PURCHASERS. 


and  that  the  land  should  consequent- 
ly bo  sold,  and  the  proceeds  applied 
in  the  first  instance,  to  the  re-payment 
of  the  advances  made  by  him,  and 
the  residue  only  to  the  satisfaction  of 
the  mortgage. 

The  general  rule  is  undoubted,  that 
a  defence  resting  on  the  ground  of  a 
purchase  for  valuable  consideration, 
without  notice,  must  be  full  and  spe- 
cific, and  must  not  rest  in  intendment, 
or  in  general  terms  and  allegations ; 
Boone  v.  Chilles,  10  Peters,  177.  It 
must,  therefore,  set  forth  the  exist- 
ence of  the  various  requisites  neces- 
sary to  render  a  purchase  available  as 
a  defence,  with  such  convenient  cer- 
tainty as  to  form  a  definite  issue  when 
traversed,  and  must  show  not  merely 
a  purchase,  but  a  purchase  fully  com- 
pleted before  or  without  notice  of  the 
right  on  which  the  bill  is  founded ; 
Caldwell  v.  Carrington,  9  Peters,  86 ; 
Gallion  V.  M'  Caslin,  1  Blackford,  91 ; 
Smitheal  v.  Gray,  1  Humphreys, 
491 ;  Doswell  v.  Buchanan,  3  Leigh, 
361 ;  Duncan  v.  Johnson,  13  Arkan- 
sas, 190  ;  ante.  It  must,  unquestion- 
ably, aver  a  real  or  pretended  title  or 
seisin  in  the  vendor,  and  its  transfer 
by  deed,  duly  executed  to  the  defen- 
dant, ante ;  Tompkins  v.  AnfJion,  4 
Sandford,  Chan.  97 ;  while  the  lan- 
guage of  some  of  the  cases  would  seem 
to  imply  that  a  real  or  apparent  seisin, 
will  be  insuflicicnt,  unless  it  is  cloth- 
ed with  'actual  or  constructive  posses- 
sion ;  Walwjjn  v.  Lee,  9  Vcsey,  32  j 
Hill  on  Trustees,  512 ;  although  the 
better  opinion  would  seem  to  be,  that 
seisin  should  be  understood  in  the 
sense  of  a  right  of  possession,  and 
that  a  purchase  otherwise  good,  will 
not  be  deprived  of  the  protection  of 
equity,  merely  because  the  land  was 


in  the  possession  of  an  intruder  at  the 
time  of  the  sale  or  conveyance ;  Wright 
v.  Wood,  11  Harris,  130  ;  Flagg  v. 
Mann,  2  Sumner,  486,  557.  It  must 
aver  that  the  consideration  of  the  pur- 
chase was  valuable;  Snelgrove  v. 
Snelgrove  ;  Burnell  v.  Reed,  21  Conn. 
592 ;  Lloyd  v.  Lynch,  4  Casey,  419, 
426;  and  not  merely  that  it  was  full 
or  sufficient ;  High  v.  Battle,  10  Yer- 
ger,  535 :  and  it  must  aver  actual 
payment  before  notice,  and  to  whom 
Tompkins  v.  Ward,  4  Sandford,  Ch 
594;  Moore\.  C7ay,  7  Alabama,  142 
Vattier  v.  Sinde ;  Boone  v.  Chilles; 
Harris  v.  Norton,  16  Barb.  264 
Everts  v.  Agnes,  4  Wisconsin,  343. 
It  must  set  forth  the  date  and  contents 
of  the  conveyance  to  the  purchaser, 
with  sufficient  fullness  to  show  its  le- 
gal effect  and  operation,  although  it 
need  not  set  forth  the  conveyance 
itself,  or  make  it  an  exhibit  attached 
to  the  plea;  WatJcins  v.  Hatchet,  1 
Equity  Cases,  Abr.  33,  pi.  3 ;  unless 
there  be  some  special  charge  of  fraud 
in  procuring  its  execution,  and  of  a 
nature  to  render  such  a  discovery  pro- 
per ;  Kennedy  v.  Green,  6  Simons,  6 ; 
and  it  must  not  only  deny  actual  know- 
ledge of  the  title  or  encumbrance  re- 
lied  on  by  the  plaintiff,  but  it  must 
also  deny  all  notice  of  its  existence, 
which  necessarily  includes  technical 
or  constructive,  as  well  as  actual  no- 
tice ;  Frost  V.  Bcckman,  1  Johnson, 
Chancery,  288  ;  Brinkerhoff  v.  Lan- 
sing, 4  Id.  65 ;  Harris^.  Fly,  7  Paige, 
421 ;  Thomas  v.  Gibson,  Walker,  Ch. 
117  ;  GallatianY.  Fnvin,  1  Hopkins, 
48  ;  8  Cowen,  361 ;  Woodruff  y.  Cook, 
2  Edwards,  259.  And  notice  must  be 
denied  not  only  at  the  time  of  the  exe- 
cution of  the  deed,  but  of  the  pay- 
ment of  the  purchase-money ;  Jevcett 


BASSET     V.     NOSWORTHY. 


121 


V.  Palmer,  7  Johnson,  Ch.  65 ;  Cur- 
tiss  V.  Hitchcock,  10  Paige,  399.  This 
must  be  done  certainly  and  positively, 
even  when  the  bill  contains  no  special 
or  afl&rmative  allegation  of  notice; 
Strong  v.  Baker,  1  Smedes  &  Mar- 
shall, Ch.  45 ;  Jenkins  v.  Bodley,  lb. 
838;  Herring  v.  Winans,  lb.  466; 
Denning  v.  Smith,  3  Johnson,  Ch. 
345;  Leftwich  v.  Orne,  1  Freeman, 
Ch.  207;  Wilson  v.  Hilyer,  Saxton, 
63 ;  Moore  v.  Clay,  7  Alabama,  742  ; 
The  Manhattan  Co.  v.  Evertson,  6 
Paige,  457 ;  De  Vendal  v.  Malone, 
25  Alabama,  272  ;  Johnson  v.  Toul- 
min,  18  Id.  50 ;  Walker  v.  Gilbert, 
lb.  80 ;  Caldwell  v.  Carrington,  9 
Peters,  86;  Gallion  v.  3I'Caslin,  1 
Blackford,  91 ;  and  whether  the  de- 
fence consists  in  a  purchase  without 
notice  by  the  defendant,  or  by  a  prior 
party  through  whom  he  derives  title ; 
Gallatian  v.  Erwin.  And  it  was  de- 
cided in  this  case,  that  as  the  aver- 
ments of  want  of  notice  had  not  been 
sufficiently  full  and  specific,  and 
amounted  to  a  denial  of  knowledge  or 
actual  notice,  and  not  of  all  notice 
whatever,  the  defect  in  the  pleadings 
could  not  be  cured  by  proof,  and  that 
the  decree  must  be  against  the  defen- 
dant, even  if  the  evidence  showed 
that  the  party  under  whom  he  claim- 
ed was  a  bona  fide  purchaser  without 
notice.  Strict  adherence  to  the  rule, 
that  the  probata  must  follow  the  alle- 
gata, is  eminently  proper  in  equity, 
where  the  complainant  has  a  right  to 
test  the  accuracy  of  the  defence,  by 
the  oath  of  the  defendant,  and  is  not 
bound  to  rest  his  case  merely  on  the 
evidence  brought  forward  in  his  favor, 
or  against  him.  And  in  Beekman  v. 
Frost,  18  Johnson,  544,  it  was  held  to 
follow,  for  this  reason,  that  a  purchase 


without  notice  could  not  be  made  the 
foundation  of  a  bill  for  relief,  because 
in  that  case,  the  defendant  would  have 
no  opportunity  of  making  the  plaintiff 
swear  to  the  absence  of  notice.  The 
reason  thus  given,  would  seem  hardly 
sufficient  to  support  the  conclusion, 
for  a  full  discovery  may  be  had  in  such 
cases  at  the  pleasure  of  the  defendant, 
by  filing  a  cross  bill  against  the  plain- 
tiff. 

The  language  of  Lord  Eldon,  in 
Walwyn  v.  Lee,  9  Vesey,  32,  might 
tend  to  create  the  impression,  that  a 
plea  setting  up  a  purchase  without 
notice,  will  be  bad,  unless  it  also  aver 
that  the  vendor  was  in  possession  at 
the  time  of  the  purchase ;  Hill  on 
Trustees,  512;  Flaggy.  Mann,  2  Sum- 
ner, 486,  561 ;  Tompkins  v.  Anthon,  4 
Sandford,  Ch.  97.  But  it  is  obvious, 
that  if  such  were  the  law,  the  posses- 
sion of  a  disseisor  or  intruder,  with- 
out right,  would  avail  for  the  protec- 
tion of  the  outstanding  equities  of 
third  persons,  and  thus  virtually  con- 
flict with  the  well  established  princi- 
ples which  confine  the  effect  of  pos- 
session on  a  purchase,  to  the  title  of 
the  party  actually  in  possession  ;  and 
whatever  the  rule  may  be  in  England, 
the  cases  in  this  country  would  seem 
to  show,  that  the  possession  will  only 
avail  for  the  protection  of  the  posses- 
sor, or  of  those  under  whom  he  holds, 
and  that  an  equity  will  not  be  let  in 
on  a  purchaser,  merely  because  the 
possession  was  out  of  the  vendor,  un- 
less it  was  in  the  claimant  or  holder 
of  the  equity,  at  the  time  of  the  pur- 
chase ;  Wright  v.  Wood,  11  Harris, 
120  ;  Rupert  v.  Mark,  15  Illinois, 
530;  Flagg\.  Mann,  2  Sumner,  488, 
558. 

It  has  been  said  in  England,  that 


122 


BONA     FIDE     PURCHASERS. 


when  notice  is  alleged  in  the  bill  as 
part  of  the  case  of  the  plaintiff,  it  must 
be  established  in  evidence  to  waiTaut 
a  decree  in  his  favor,  though  not  de- 
nied in  the  answer ;  Eijre  v.  DoJpliin, 
2  Ball  &  Beatty,  290 ;  but  that  when 
proof  of  notice  is  not  essential  to  his 
case,  and  the  defendant  seeks  to  avoid 
it  by  a  denial  of  notice,  the  defence 
will  fail,  if  the  denial  be  made  evasive- 
ly; Cason  V.  Round  J  1  Prec.  Ch.  226. 
The  true  rule  would  seem  to  be,  that 
the  plaintiff  is  both  entitled  and 
bound  to  make  out  the  whole  case  in 
his  bill,  whether  the  defendant  has 
answered  every  part  of  it  or  not;  M^  Ga- 
liee  V.  Sneed,  1  Dev.  &  Bat.  Equity, 
333 ;  but  that  the  defendant  cannot 
prove  matter  by  way  of  avoidance, 
unless  alleged  in  the  answer  with  rea- 
sonable precision,  although  allegations 
which  would  be  bad  on  exception,  may 
be  aided  by  the  act  of  the  plaintiff  in 
taking  issue  upon  them,  and  resting 
his  case  on  the  merits,  as  disclosed  by 
the  evidence  ;  ParJcman  v.  Welch,  19 
Pick.  231;  Griffith  v.  Griffith,  1 
Hoffman,  Ch.  153. 

This  doctrine,  however,  only  applies 
in  its  full  extent  when  the  defence  is 
made  by  answer,  for  when  it  is  made 
by  plea,  the  rule  is  well  settled,  that 
if  the  plaintiff,  instead  of  replying, 
and  setting  the  plea  down  for  argu- 
ment, take  issue  upon  it,  nothing  will 
be  in  issue  that  is  not  alleged  or  de- 
nied in  the  plea,  and  the  fate  of  the 
issue  will  determine  that  of  the  bill ; 
Mitford's  Pleading,  302 ;  Iliyhes  v. 
m>kr,  G  Wheaton,  453.  When, 
therefore,  issue  is  joined  on  a  plea  of 
purchase  for  valuable  consideration, 
which  wholly  omits  all  denial  of  no- 
tice, the  issue  must  be  determined  in 
favor  of  the  defendant,  and  the  bill 


dismissed  on  proof  of  the  plea,  not- 
withstanding evidence  of  notice  on 
the  part  of  the  plaintiff;  Harris  v. 
Inghdevj,  2  Peere  Williams,  91  j 
Fii<h  V.  Miller,  5  Paige,  29 ;  Doe  v. 
M'JIichacl,  G  Id.  141 ;  Tompkins  v. 
Anthon,  4  Sandford,  Ch.  97. 

Although  notice  must  be  denied 
positively  and  explicitly,  yet  it  is  not 
necessary  to  enter  into  a  denial  of  par- 
ticular facts  or  circumstances  tending 
to  show  notice,  unless  charged  in  the 
bill.  And  even  then  if  the  defence  be 
pleaded,  the  denial  should  be  by  an- 
swer in  aid  of  the  plea,  and  not  in  the 
plea  itself.  But  there  is  no  doubt 
that  a  plea  may  be  defective  for  want 
of  such  support,  when,  if  properly 
supported,  it  would  have  been  good. 
Thus,  in  Jackson  v.  Rowe,  2  Sim. 
&  Stu.  472,  (^ante,  95,)  where  the 
plea  was  held  defective,  as  setting 
up  a  conveyance  in  fee,  by  a  party 
in  whom  the  bill  had  shown  a  mere 
estate  for  life,  the  defect  would  have 
been  cured,  had  the  defendant  been 
able  to  allege  by  answer,  in  support 
of  his  plea,  the  production  of  title 
papers,  or  deeds,  of  a  nature  to  create 
a  false  impression,  that  the  party 
making  the  settlement  was  seised  in 
fee ;  Sugden  on  Vendors,  417,  pi.  3. 
And  whether  made  by  plea,  or  answer, 
the  defence  will  be  bad,  unless  it  con- 
tain a  denial,  or  explanation  in  some 
shape,  of  all  matters  appearing  in  the 
bill,  and  tending  directly,  or  by  neces- 
sary implication,  to  impeach  the  good 
faith  and  fairness  of  the  transaction 
in  which  the  claim  of  the  defendant 
had  its  origin ;  Wormlei/  v.  Wormley, 
8  Wheaton,  421 ;  Johnson  v.  Toul- 
min,  18  Alabama,  50;  Balcom  v.  The 
New  York  Jnsunnicc  Company,  11 
Paige,  454.     But  care  must  be  taken 


BASSET     V.     NOSWORTHY. 


123 


not  to  carry  an  answer  in  support  of 
a  plea,  beyond  a  denial  of  those  facts 
which  are  charged  in  the  bill,  in  anti- 
cipation and  avoidance  of  the  defence 
pleaded,  for  otherwise  the  plea  will  be 
overruled,  and  the  defendant  held 
liable  to  complete  the  discovery  on 
which  he  has  entered;  Sousa  v.  De 
Meyer,  2  Paige,  57;  Tompkins  v. 
Ward,  4  Sandford,  594.  But  this 
technical  rule,  which  though  sound 
in  theory  is  embarrassing  in  practice, 
has  been  discarded  by  the  recent  or- 
ders in  equity  of  the  Supreme  Court 
of  the  United  States,  and  of  some  of 
the  state  tribunals. 

The  most  appropriate  mode  of 
making  the  defence  here  considered, 
is  by  plea,  when  it  will  have  the  eflPect 
of  protecting  the  defendant,  not  only 
from  the  claim  of  the  plaintiff,  but 
from  the  necessity  of  making  any  dis- 
covery or  admission,  as  to  the  validity 
of  that  claim,  or  the  nature  of  his  own 
title,  except  in  so  far  as  regards  the 
immediate  conveyance  to  himself, 
under  which  he  has  come  into  posses- 
sion, and  holds  as  purchaser;  Snel- 
groce  v.  Snelgrove,  4  Dessaussure, 
274.  It  is,  however,  well  settled, 
that  such  a  defence  will  be  equally 
good,  if  substantiated,  when  made  by 
answer;  High  v.  Batte,  10  Yerger, 
385 ;  Donnell  v.  King's  Heirs,  7 
Leigh,  393.  The  general  rule  is  un- 
doubted that  a  defendant  who  submits 
to  answer,  must  answer  fully;  The 
Bank  of  Vtica  v.  3Iersereau,  7  Paige, 
517.  But  in  Jerrard  v.  Sanders,  2 
Vesey,  jun.  254,  and  Hagthorp  v. 
Hook's  Adm'rs,  1  Gill  &  Johnson, 
270,  this  rule  was  held  to  admit  of  an 
exception,  when  the  matter  answered, 
though  partial,  is  of  such  a  nature  as 
to  be  a  complete  defence  in  itself,  and 


thus  preclude  the  necessity  for  answer- 
ing further.  And  it  was,  consequent- 
ly, decided  in  both  cases,  that  where 
the  answer  sets  forth  that  the  de- 
fendant is  a  purchaser  for  valuable 
consideration,  without  notice,  it  obvi- 
ates the  necessity  for  a  full  discovery 
of  the  matters  contained  in  the  bill. 
But  in  Ovey  v.  Leighton,  2  Simons  & 
Stu.  234,  and  the  Earl  of  Portarling- 
ton  V.  Soulhy,  7  Simon,  28,  what 
seems  to  have  been  the  earlier  doc- 
trine of  equity  was  re-established,  and 
it  was  decided  that,  if  the  defendant 
choose  to  enter  upon  an  answer  to  the 
case  of  the  plaintiff,  he  must  answer 
the  whole,  and  make  a  full  discovery 
with  the  attendant  danger,  that  the 
facts  or  papers  discovered,  may  show 
actual  or  constructive  notice,  and  thus 
overthrow  the  defence  which  it  is  his 
object  to  establish.  The  same  ground 
was  taken  in  Salmon  v.  Claggett,  3 
Bland,  125,  where  it  was  held,  after 
an  elaborate  examination  of  principles 
and  authorities,  that  the  rule  which 
holds  that  a  protection  against  disco- 
very can  only  be  found  in  a  plea,  or 
demurrer,  is  founded  in  reason,  and 
admits  of  no  exception.  It  is  obvious 
that  the  defendant  ought  not  to  be 
permitted  to  select  part  of  the  plain- 
tiff's case  for  denial,  without  answer- 
ing the  residue.  The  new  rules  in 
equity  of  the  Supreme  Court  of  the 
United  States,  which  have  been  adopt- 
ed by  the  Supreme  Court  of  Pennsyl- 
vania, give  the  defendant  the  right  to 
protect  himself  from  discovery,  by  set- 
ting forth  in  his  answer  any  defence 
which  would  have  been  available  for 
that  purpose,  if  made  by  plea.  But 
as  it  is  expressly  declared,  that  the 
defendant  need  not  answer  in  such 
cases,  any  thing  more  than  he  would 


124 


BONA     FIDE     PURCHASERS. 


have  been  bound  to  answer  had  he 
pleaded,  such  an  answer  must  be  re- 
garded as  equivalent  to  a  plea  sup- 
ported by  an  answer,  and  neither  its 
denials,  nor  allegations,  can  be  relied 
on  at  the  hearing,  unless  supported  by 
proof,  or  directly  responsive  to  such 
matters  as  it  would  have  been  neces- 
sary to  respond  to,  had  the  defence 
been  made  by  plea.  Such,  at  least, 
would  seem  to  be  the  necessary  infer- 
ence, under  the  general  rule,  that  the 
oath  of  the  defendant  cannot  avail 
him,  except  so  far  as  it  is  incumbent 
upon  him  to  make  it. 

It  has  been  held  on  several  occa- 
sions, that  where  the  allegations  of 
the  defendant  that  he  is  a  bona  fide 
purchaser,  without  notice,  are  suffi- 
ciently full  and  precise,  they  not  only 
throw  the  burden  of  proof  on  the 
plaintiff,  but  cannot  be  overthrown  by 
the  testimony  of  one  witness,  unless 
sustained  by  circumstances  sufficiently 
strong  to  support  his  credit,  and  shake 
that  which  would  otherwise  be  due  to 
the  statement  of  the  defendant;  Fhigg 
V.  3Iann,  2  Sumner,  48G,  551 ;  Hurjh- 
son  v.  Mandeville,  4  Dessaussure,  87 ; 
Mcvjwood  V.  Luhcock,  1  Bailey's 
Equity,  382 ;  Conner  v.  Tuck,  1  Ala- 
bama, 794.  And  in  his  work  on 
Vendors,  Mr.  Sugden  has  laid  this 
rule  down  without  qualification,  as  if 
applicable  in  all  cases  where  a  ques- 
tion arises  between  a  denial  of  notice 
by  the  defendant,  and  the  evidence 
adduced  to  prove  it  by  the  plaintiff. 
Sugden  on  Vendors,  vol.  8,  p:  484, 
pi.  9.  But  the  cases  there  cited  in 
support  of  this  proposition,  merely 
show,  that  where,  as  in  Jhn/hson  v. 
Mandeville,  and  Flagg  v.  Mann,  the 
denials  of  the  answer  are  responsive 
to  the  allegations  and  interrogatories 


of  the  bill,  they  must  be  taken  as  true, 
unless  shown  to  be  false  by  more  than 
the  oath  of  one  witness.  In  this  form, 
the  rule  is  well  settled,  and  of  general 
application  ;  Uine  v.  Dodd,  2  Atkyns, 
275;  Eingdome  v.  Boakes,  Prec.  Ch. 
19  ;  Alam  v.  Jourdan,  1  Vernon,  161 ; 
3Iortimer  v.  Orchard,  2  Vesey,  jun., 
243;  Evans  v.  Blcknell,  6  Id.  174; 
East  India  Co.  v.  Donald,  9  Id.  275 ; 
Cooke  V.  Clayworth,  18  Id.  12 ;  Smith 
V.  Brush,  1  Johnson,  Ch.  459;  Cla- 
son  V.  Morris,  10  Johnson,  524 ; 
Clark's  Ex'ors  v.  Van  Reimsdyk,  9 
Cranch,  153 ;  Lenox  v.  Prout,  3 
Wheaton,  520 ;  Hughes  v.  Blake,  6 
Id.  453 ;  Daniel  v.  Mitchell,  1  Story, 
172  ;  Dunham  v.  Gates,  1  Hoff.  Ch. 
R.  185 ;  Martin  v.  Browning,  2 
Hawks,  644;  Hart  v.  Ten  Eyck,  2 
John.  Ch.  92  ;  Watkins  v.  Stockett, 
6  Harr.  &  John.  435 ;  Hughes  v. 
Blake,  6  Wheaton,  468  ;  Feirson  v. 
Cla/yes,  15  Vermont,  93 ;  Gould  v. 
Williamson,  21  Maine,  273 ;  Hollis- 
ter  V.  Barkley,  11  New  Hamp.  501 ; 
Beatty  v.  Smith,  2  Hen.  &  Munf. 
395;  Langdony.  Goddard,  2  Story, 
267;  Sullivan  v.  Bates,  1  Littell, 
42  ;  Roberts  v.  Salisbury,  3  Gill  & 
John.  425;  Hawkins  v.  Embry,  3 
Monroe,  225  ;  Gaither  v.  Caldwell,  1 
Dev.  &  Bat.  Eq.  504,  509 ;  Speight 
V.  Speight,  2  Dev.  &  Bat.  Eq.  280 ; 
Petty  V.  Taylor,  5  Dana,  598 ;  Gray 
V.  Paris,  7  Yerger,  155 ;  Hudson  v. 
Cheatham,  5  J.  J.  Marsh.  50;  Pat- 
rick V.  Langston,  lb.  654 ;  Mason 
v.  Peck,  7  Id.  300 ;  Stafford  v.  Bry- 
an, 1  Paige,  239  ;  Clark  v.  Oakley, 
4  Ark.  236.  In  these  cases,  the 
matter  denied  in  the  answer  was 
charged  in  the  bill,  and  the  decision 
depended  on  the  obvious  principle, 
that  where  the  plaintiff  has  chosen  to 


BASSET     V.     NOSWORTHY. 


125 


interrogate  tlie  conscience  of  tlie  de- 
fendant,  lie  is  not  entitled  to  select 
those  responses  whicli  make  in  his 
favor,  and  reject  the  rest,  but  must 
admit  all  as  verity,  unless  conclusively 
disproved  or  rebutted.  "  The  reason 
upon  which  the  rule  stands  is  this, 
that  where  the  plaintiff  calls  on  the 
defendant  to  answer  an  allegation,  he 
makes,  and  thereby  admits  the  answer 
to  be  evidence."  Per  Marshall,  C.  J. ; 
Glarh's  Bx'ors  v.  Van  Relmsdyk,  9 
Cranch,  153.  But  it  is  equally  well 
settled  that  where  this  reason  does  not 
apply,  as  when  the  defendant  intro- 
duces new  matter  in  his  answer,  not 
responsive  to  the  bill,  and  intended 
to  take  effect  by  way  of  avoidance,  he 
must  make  out  his  defence  in  equity 
as  at  law,  according  to  the  usual  rules 
which  govern  the  order  of  pi'oof,  and 
the  determination  of  issues ;  The  Neio 
England  Bank  v.  Lewis,  8  Pick.  113  ; 
lb.  63 ;  James  v.  M'Kernon,  6  John- 
son, 543,  559;  Skinner  v.  White,  17 
Id.  357,  367 ;  Neale  v.  Hagthrop,  3 
Bland,  551 ;  Salmon  v.  Claggett,  3 
Bland,  125;  Wakeman  v.  Grover,  4 
Paige,  23 ;  Hart  v.  Ten  Ei/ck,  2  John. 
Ch.  62  ;  O'Brien  v.  Elliot,  15  Maine, 
125 ;  Lucas  v.  Bank  of  Darien,  2 
Stewart,  280;  Peirson  v.  Clai/es,  15 
Verm.  93  ;  M'^Daniels  v.  Barnum,  5 
Vermont,  279  ;  3Iott  v.  Harrington, 
12  Id.  199;  Cannon  v.  Norton,  14 
Id.  178  ;  Lane  v.  Marshall,  15  Id. 
85 ;  McDonald  v.  McDonald,  16  Id. 
630;  Randall  v.  Phillijys,  ii  Mason, 
378 ;  Chinowith  v.  Williamson,  2  Bibb, 
36 ;  Clarke  v.  White,  12  Peters,  178  ; 
Lampton  v.  Lamp>ton,  6  Monroe,  620 ; 
Paynes  v.  Coles,  1  Munf.  373  ;  Hag- 
thorp  V.  Hook,  1  Gill  &  John.  272 ; 
Alexander  v.  Wallace,  10  Yerger, 
105 ;    Carter  v.  Leeper,  5  Dana,  263  ; 


Flaggy.  Mann,  2  Sumner,  487 ;  Gould 
V.  Williamson,  21  Maine,  273  ;  Jones 
V.  Jones,  1  Ired.  Eq.  332 ;  Johnson  v. 
Person,  1  Dev.  Eq.  364 ;  Peckworth 
V.  Butler,  1  Wash.  224;  Miller  v. 
Wack,  1  Saxton,  204;  Noncood  v. 
Norwood,  2  Harr.  &  John.  238; 
3PGoioen  V.  Young,  2  Stew.  &  Port. 
161 ;  Eherley  v.  Groff,  9  Harris, 
251.  Hence  it  would  seem,  that 
where  a  purchase  for  valuable  consi- 
deration, without  notice,  is  set  up  as 
a  defence,  whether  by  plea  or  answer, 
it  is  incumbent  on  the  defendant  to 
prove  the  affirmative  part  of  the  pro- 
position, which  he  has  advanced  af- 
firmatively, and  to  show  an  actual  pur- 
chase for  value  fully  completed.  Boone 
V.  Chilles,  10  Peters,  177 ;  Halstead 
V.  The  Bank  of  Kentucky,  4  J.  J. 
Marsh.  554 ;  Kyle  v.  Tait's  Adm'r,  6 
Grrattan,  44 ;  although  he  is  not  bound 
to  go  further,  and  prove  negatively, 
that  he  had  no  notice  at  the  time  of 
the  purchase.  On  the  other  hand, 
the  plaintiff,  although  entitled  to  in- 
sist that  the  defendant  shall  make  out 
the  fact  of  the  purchase  affirmatively, 
must,  notwithstanding,  take  the  bur- 
den of  proving  the  existence  of  notice 
on  himself.  Carr  v.  Callaghan,  3 
Littell,  365.  And  the  oath  of  the 
defendant,  in  the  plea  or  answer, 
whether  in  favor  of  one  fact  or  against 
the  other,  would  seem  to  be  wholly 
out  of  the  case,  both  for  the  purposes 
of  the  issue,  and  of  the  final  determi- 
nation, except  in  the  instance  already 
adverted  to,  where  the  plaintiff  has 
made  it  evidence  by  the  allegations 
and  interrogatories  of  the  bill.  Tomp- 
kins V.  Ward,  4  Sandford,  Ch.  594. 
"  Such  a  defence,"  said  Baldwin,  J., 
in  Boone  v.  Chilles,  10  Peters,  177, 
"  sets  up  matter  not  in  the  bill,  and 


126 


BONA     FIDE     PURCHASERS. 


presents  a  new  case,  not  responsive  to 
the  bill,  but  founded  on  a  right  and 
title,  operating,  if  made  out,  to  bar 
and  avoid  an  equity,  which  would 
otherwise  prevail.  The  answer  setting 
it  up  is  no  evidence  against  the  plain- 
tiff, who  is  not  bound  to  contradict  or 
rebut  it.  It  must  be  established  affir- 
matively by  the  defendant  indepen- 
dently of  his  oath."  The  result  of 
the  whole  would,  therefore,  seem  to 
be,  that  when  the  circumstances  are 
such  as  to  compel  the  plaintiff  to  ad- 
mit a  superior  title  in  the  defendant, 
and  avoid  it  by  an  allegation  of  fraud, 
or  notice,  as  when  a  grantee  under 
an  unrecorded  deed,  seeks  to  set  aside 
a  deed  duly  recorded,  there  the  onus 
of  averring  and  proving  notice  will 
rest  on  the  plaintiff;  Center  v.  The 
Bank,  22  Alabama,  743;  and  the  de- 
fendant will  have  the  advantage  of 
requiring  that  his  account  of  the  mat- 
ter should  be  received  as  true,  un- 
less conclusively  disproved;  Hine  v. 
Dodd ; Hinfjdome  v.BooaJces;  Sullivan 
V,  Bates,  1  Littell,  42  ;  Mason  v.  Pech, 
7  J.  J.  Marshall,  301;  Roberts  v. 
Salisbury,  3  Gill  &  Johnson,  425  : 
but  that  where  the  plaintiff  claims  on 
a  superior  title,  and  the  defendant  in- 
stead of  relying  on  title,  relies  on  his 
equitable  right,  as  a  purchaser,  with 
or  without  title,  he  must  make  out  his 
defence  under  the  ordinary  rules  of 
evidence,  and  cannot  rely  on  his  own 
oath  for  its  support,  unless  the  plain- 
tiff has  enabled  him  to  do  so,  by  charg- 
ing fraud  or  notice,  in  anticipation  of 
the  defence  set  up  as  an  avoidance. 
Uagthorj}  v.  ITooJc's  Ex'ors,  1  Grill  & 
Johnson,  270,  282;  Neale  v.  liar/, 
tliorp,  3  Bland.  551 ;  Maywood^.  Lvh. 
cock,  1  liailcy.  Equity,  382.  And  it 
must  be  remembered  that  the  answer 


of  the  defendant  denying  fraud  or  no- 
tice, will  avail  nothing,  even  when  re- 
sponsive to  the  bill,  if  it  set  forth,  or 
admit  the  existence  of  facts,  which 
necessarily  imply  legal  or  actual  fraud 
or  notice.  Gould  v.  Williamson,  21 
Maine,  273  ;  The  East  India  Co.  v. 
Donald,  9  Vesey,  275;  Harjthorp  v. 
Book. 

In  general,  those  who  claim  as  pur- 
chasers without  notice,  must  prove 
payment  of  the  purchase-money  by 
direct  and  independent  evidence,  and 
cannot  rely  on  the  recitals  in  the  deed 
or  on  the  receipt  at  its  foot,  as  affording 
even  a  scintilla  of  proof  that  the  con- 
sideration has  been  actually  paid ; 
Nolen  v.  Gwyn,  16  Alabama,  725 ; 
De  Vendal  v.  Maloiie,  25  Id.  272  ; 
Kimball  v.  Fenner,  12  New  Hamp- 
shire, 248  ;  Rogers  v.  Hall,  4  Watts, 
359 ;  Clark  v.  Depew,  1  Casey,  509  ; 
Henry  v.  Raiman,  lb.  354,  360  ;  Bol- 
ton V.  Johns,  5,  Barr,  151 ;  Lloyd  v. 
Lynch,  4  Casey,  419 ;  and  in  Be  Ven- 
dal V.  Malone,  the  court  went  still 
further,  by  deciding  that  the  produc- 
tion of  the  notes  which  had  been 
given  at  the  time  of  the  purchase, 
would  not  be  proof  of  value  against 
creditors,  without  evidence  that  they 
had  been  paid. 

In  Jackson  v.  M^  Chcsney,  7  Cowen, 
361,  a  difference  was  said  to  exist  be- 
tween the  evidence  necessary  in  an 
action  of  ejectment,  and  in  support  of 
a  plea  or  answer  to  a  bill  in  equity, 
the  receipt  of  the  grantor  hcin^prima 
facie  sufficient  in  the  former  case,  but 
not  in  the  latter ;  and  the  same  view 
was  taken  in  Wood  v.  Chajn'n,  3  Ker- 
nan,  509  :  but  this  distinction  is  ex- 
ceedingly narrow,  and  would  seem 
equally  destitute  of  technical  and  sub- 
stantial validity.     When,  however,  a 


LE     NEVE     V.  LE     NEVE.                                       127 

deed  valid  on  its  face,  is  sought  to  be  rights  or  titles.     Lutton  v.  Hesson,  6 

impeached  as  being  fraudulent  against  Harris,  109  ;    Clapp   v.    French,  22 

creditors,  there  would  seem  more  rea-  Pick.    247.     The   language  held  in 

son  for  contending   that  the  receipt  Lloyd  v.  Lloyd,  would,  however,  seem 

should  be  admissible  in  evidence,  al-  to  imply  that   it   is   necessarily  and 

though,  of  course,  not  conclusive  on  equally  inadmissible,    whenever    the 

the  jury ;  because  it  is  not  only  a  part  rights  of  third  persons  are  in  question, 

of  the   res  gestce,  but    a  declaration  and  unless  the  contest  is  confined  to 

made  apparently  against  interest,  by  those  who  are  parties  or  privies  to  the 

one  under  whom  both  the  parties  to  deed, 
the  suit  claim,  although  by  different 


'       NOTICE. 

*LE  NEVE  V.  LE  NEVE.  [*23] 

DECEMBER  9,  1V47. 
REPORTED   AMB.    436.^ 

Notice.] — Lands  in  a  register  county,  settled  by  a  deed  whlcli  is  not  registered, 
are  settled  upon  a  second  marriage,  with  notice  of  the  former  settlement, 
and  the  second  settlement  is  registered  pursuant  to  the  statute  7th  Anne. 
Tlic  former  settlement  shall  he  preferred  in  eqidty.  Notice  to  an  agent  or 
trustee  is  notice  to  the  principal. 

Lord  Chancellor  Hardwicke. — The  bill  was  brought  by  the  plaintiffs 
Peter  Le  Neve  and  Hugh  Pigot  and  Elizabeth  his  wife,  late  Elizabeth  Le 
Neve,  as  the  only  surviving  children  of  the  defendant  Edward  Le  Neve,  by 
Henrietta,  his  late  wife. 

The  end  of  the  bill,  in  general,  is,  to  have  the  execution  of  trust  of  lease- 
hold estates  settled  upon  the  late  wife  of  Edward  Le  Neve  and  the  issue  of 
that  marriage,  by  articles  previous  to  the  marriage,  dated  1st  July,  1718 ;  and 
that  the  conveyances  made  by  the  defendant  Edward  Le  Neve  and  the  defen- 
dant Mary,  his  now  wife,  to  trustees,  may  be  set  aside  and  delivered  up,  being 
made  after  notice  of  the  articles  of  the  1st  of  July,  1718,  or  of  the  other  con- 
veyances made  in  pursuance  thereof;  and  to  have  the  leasehold  exonerated 
and  disincumbered. 

The  facts  are  that,  in  1718,  the  defendant  Edward  Le  Neve  intermarried 
with  his  first  wife,  Henrietta  Le  Neve,  who  had  a  considerable  fortune  ;  and 
articles  were  executed  previous  to  the  marriage,  dated  the  1st  July,  1718, 
whereby  the  father  of  Edward,  in  consideration  of  Henrietta's  fortune,  &c., 
covenanted  with  trustees  to  convey  to  them  several  estates,  and  some  lease- 

1  S.  C,  3  Atk.  64G ;  1  Ves.  64. 


128  NOTICE. 

P^.-, , -l  bold,  amongst  *the  rest,  near  Soho  Square,  in  the  county  of  3Iiddlesex  ; 
to  permit  Edward  Le  Xeve  the  younger  to  receive  the  rents  and  pro- 
fits during  his  own  life,  and  after  his  death  to  pay  to  Henrietta  £250  a-year, 
in  case  she  survived  Edward  ;  and,  after  the  decease  of  Edward  and  Henrietta, 
then  the  said  estates  should  remain  to  their  issue  in  such  manner  as  Edward 
the  younger  should  by  will  or  otherwise  appoint ;  and,  for  want  of  such  issue, 
to  the  use  of  Edward  Le  Neve  the  father,  and  his  heirs. 

The  16th  June,  1719,  a  settlement  was  made  in  pursuance  of  the  articles. 

The  marriage  took  effect ;  and  Edward  and  Henrietta  had  issue,  plaintifis 
Peter  and  Elizabeth.     Henrietta  died  July,  1740,  leaving  no  other  children. 

Twenty-five  years  after  the  first  marriage,  Edward  Le  Neve  entered  into  a 
treaty  of  marriage  with  the  defendant  Mary,  and  by  articles  dated  the  16th  of 
November,  1743,  previous  to  the  marriage,  Edward,  in  consideration  of  such 
marriage,  covenanted  with  the  trustees,  the  defendants  Dandridge  and  Norton, 
to  convey  these  very  leasehold  estates  near  Soho  Square  to  them,  their  execu- 
tors, &c.,  within  three  months  after  the  marriage,  in  trust  to  pay  to  the  de- 
fendant 3Iary,  out  of  the  rents  of  these  messuages,  in  case  she  survived  him,  a 
clear  annuity  of  £150  for  her  life,  for  her  jointure,  &c. 

The  marriage  took  effect,  and  three  months  after,  on  the  20th  of  January, 
1744,  a  settlement  was  made  pursuant  to  the  articles. 

The  settled  estate,  being  houses  in  Middlesex,  was  subject  to  the  Kegister 
Act,  the  7th  Anne,  cap.  20. 

The  second  articles  and  settlement  were  registered,  but  not  the  first. 

Edward  has  mortgaged  the  house  likewise. 

The  bill  is  brought  in  order  to  set  the  second  articles  and  settlement  out  of 
the  way,  and  that  they  may  be  postponed  to  the  first  articles  and  settlement ; 
upon  this  equity,  that  the  defendant  Mary  Le  Neve  had  notice  of  them. 

*The  counsel  for  the  plaintiffs  admit  that  the  registering  of  the 
t  "'J  second  articles  and  settlement  has,  in  point  of  law,  affected  the  lease- 
hold estates,  as  the  7th  Anne  gives  the  legal  estate  where  the  effect  of  the 
registering  has  placed  it. 

The  question  is,  Whether  equity  will  enable  the  children  of  the  first  mar- 
riage to  get  the  better  of  the  defendant's  legal  right  ?  And  this  will  depend 
upon  the  question  of  notice  : — 

1st,  Whether  it  appears  sufiicicntly,  that  Joseph  Norton  was  attorney  for 
the  defendant  Mary  in  the  transaction  of  her  marriage. 

2ndly,  Whether  Norton  himself  had  suflacient  notice  of  the  first  articles 
and  settlement. 

ordly.  Whether  that  will  affect  Mary  as  a  purchaser,  and  postpone  her 
articles  and  settlement,  notwithstanding  the  ricgistcr  Act? 

First,  It  will  depend  on  the  answer  of  the  defendant  Mary. 

She  has  in  general  denied  any  notice  of  the  first  articles  and  settlement  till 
six  months  after  the  marriage,  and  says,  "that  the  defendant  Joseph  Norton 
was  so  far  from  being  employed  as  solicitor  for  her,  in  transacting  the  busi- 
ness of  the  marriage  articles  and  settlement,  that  he  had  been  for  a  consider- 


LE      NEVE      V.      LE      NEVE,  129 


able  time  before  employed  as  attorney  for  the  defendant  Edward  Le  Neve, 
her  hus^band;  that,  being  at  the  time  of  the  marriage  concerned  for  her  hus- 
band, slie  was  thereupon  induced  to  place  confidence  in  him,  and  her  husband 
assured  her  he  would  take  care  there  should  be  a  handsome  provision  made 
for  her,  and  recommended  Norton  as  a  proper  person  to  prepare  the  deeds 
whereby  such  settlement  was  to  be  made  upon  her,  to  which  she  consented ; 
and  that  Norton  assured  her  that  he  had  taken  care  to  secure  for  her  £150  a. 
year  by  way  of  jointure,  and  did  not  then,  or  at  any  time  before  her  intended 
marriage,  give  her  any  notice  of  any  former  settlement." 

It  is  insisted  by  the  defendant  Mary's  counsel,  that  Joseph  Norton  was  not 
lier  attorney  or  aeent,  but  her  *husband's,  and  that  the  attorney  for 
one  party  having  notice  will  not  affect  her  with  notice.  L    --*J 

I  am  of  opinion  she  has  admitted  enough  on  her  side  to  make  him  attorney 
or  agent  for  her.  If  she  placed  confidence  in  Jo.seph  Norton,  »no  matter  on 
whose  recommendation, — if  she  relied  enough  on  her  husband  to  take  his  re- 
commendation, it  is  sufficient;  or  otherwise  it  would  be  mischievous  and  in- 
convenient if  this  Court  was  to  take  into  their  consideration  from  whom  the 
recommendation  comes;  for  in  purchases,  and  more  especially  in  mortgages, 
very  frequently  the  same  counsel  and  agents  are  employed  on  both  sides,  and 
therefore  each  side  is  affected  with  notice  as  much  as  if  different  counsel  and 
agents  had  been  employed. 

It  is  material  to  see  how  far  the  cases  have  gone  on  this  point.  Two  have 
been  cited  :  Bi-atherfon  v.  Ilatt,  2  Veru.  574,  and  Jennings  v.  Moore,  BUn- 
corne,^  and  Others,  2  Vern.  600.  [S.  C,  2  Bro.  P.  C.  278,  Toml.  ed.]  The 
first  was  shortly  this: — A.  makes  three  several  mortgages  to  E.,  C,  and  D., 
and  in  the  last  mortgage  B.  is  a  party,  and  agrees,  after  he  is  paid  he  will 
stand  a  trustee  for  D.  Decreed,  that  C.  shall  be  paid  before  D.,  for,  all  the 
securities  being  transacted  by  the  same  scrivener,  notice  to  him  was  notice 
toD. 

See  how  far  this  goes  ; — the  same  scriveners  were  witnesses,  and  engrossed 
all  the  securities,  and  were  in  the  nature  of  agents  for  all  the  lendeis,  and 
very  likely  for  the  borrower  himself;  and  notwithstanding  it  does  not  appear 
Mrs.  Hatt,  had  personal  notice,  ''yet  notice  to  the  agent  is  notice  to  the  party, 
and,  consequently,  they  that  lend  last  must  come  last,  having  notice  of  what 
was  before  lent;  and  if  any  one  after  notice  lend  more  money,  although  he 
should  obtain  the  legal  estate,  yet  he  would  in  equity  stand  affected  with  the 
notice,  and  be  bound  thereby." 

The  second  case  was  no  more  than  this  : — Blincorne  having  notice  of  an 

incumbrance,  purchases  in  the  name  of  Moore,  and  then  agrees  that  Moore 

shall  be  the  purchaser,  and  he  accordingly  pays  the  purchase-money      ,_ 

^without  notice  of  the  incumbrance.     Thouda  Moore  did  not  employ  L    "'-I 

Blincorne,  nor  know  anything  of  the  purchase  till  after  it  was  made,  yet 

Moore  approving  of  it  afterwards   made  Blincorne  his  agent  ab  initio,  and 

therefore  sh.all  be  affected  with  the  notice  to  Blincorne. 

'  Nom.  lllcnkarne  v.  Jennens. 
VOL.    II. — 9 


130  NOTICE. 

The  last  goes  a  great  way :  for  Moore  knew  nothing  of  the  transaction,  and 
yet  the  Court  held,  that  his  approving  it  afterwards  made  Blincorne  his  agent 
ab  initio.  This  carries  it  further  than  the  present  case;  but  the  first  is  a 
clear  authority. 

These  cases,  therefore,  sufficiently  prove,  that  it  is  not  at  all  material  to  the 
plaintiffs  on  whose  advice  or  recommendation  the  defendant  Mary  intrusted 
Norton ;  nor  does  it  make  any  difference  that  it  is  the  recommendation  of  the 
husband  any  more  than  of  any  other  person. 

The  second  consideration  is,  (as  it  appears  clearly  that  Norton  was  employed 
for  defendant  Mary,)  whether  there  is  sufficient  evidence  of  notice  to  him  ? 

An  objection  has  been  taken  by  defendant  Mary's  counsel,  that,  as  notice 
hath  been  denied  by  her  answer,  if  it  be  sworn  to  by  one  witness  only,  that 
being  but  oath  against  oath,  cannot  prevail  to  establish  the  fact.^ 

The  general  rule,  to  be  sure,  is  so,  but  it  admits  of  this  distinction  : — where 
the  denial  of  a  defendant  is  clear,  it  has  been  adhered  to;  but  where  the  an- 
swer is  not  a  positive  denial  of  the  same  fact,  but  only  as  to  part,  as  in  the 
present  case,  as  to  the  notice  to  herself  only,  it  makes  a  difference. 

And  there  are  many  cases  where  the  Court,  upon  the  testimony  of  one  wit- 
ness, whose  credit  is  unimpeached,  and  what  he  swears  is  uncontradicted  by 
the  answer,  have  decreed  upon  this  single  evidence. 

The  defendant  Mary  denies  notice  to  herself;  but  whether  there  was  notice 
to  another  person,  her  agent,  she  passes  by  without  giving  any  answer. 

This  is  a  denial,  indeed,  as  to  herself,  but  it  is  at  the  same  time  what  is 
called  at  law  a  negative  pregnant,  that  there  was  notice  to  her  agent. 

As  to  the  evidence  of  notice  to  Norton,  it  is  extremely  *strong;  for 
L  -I  he  swears  that  he  had  notice  of  the  first  articles  some  time  before  the 
second  marriage,  and  that  he  had  then  a  coi^y  thereof  from  the  defendant  Ed- 
ward he  Neve,  in  order  to  take  coun&eV s  opinion  thereon,  how  to  secure  against 
the  effect  of  them,  and  to  contrive  in  what  manner  they  might  get  the  letter  of 
these  articles;  and,  therefore,  as  to  Norton,  there  cannot  be  a  stronger  notice. 

The  third  and  last  general  question  i.s,  whether  the  notice  to  Norton  will 
affect  the  defendant  Mary,  as  a  purchaser,  and  postpone  her  articles  and  set- 
tlement notwithstanding  the  Eegister  Act  ? 

This  depends  on  two  things  : — 

1st,  Whether  any  notice  whatsoever  would  be  sufficient  to  take  from  the 
defendant  the  benefit  of  the  Kcgister  Act? 

2nd,  Whether  personal  notice  to  the  defendant  Mary,  is  requisite  to  post- 
pone her? — or,  whether  notice  to  her  agent  is  sufficient  to  do  it  likewise? 

As  to  the  1st,  it  is  a  question  of  great  extent  and  consequence. 

The  preamble  of  the  statute  of  the  7th  Anne,  c.  20,  is  in  substance : — 

1  The  testimony  of  one  witnes^cannot  prcviiil  against  a  clear  denial  in  the  answer, 
(East  India  Company  v.  Donald,  9  Ves.  275  ;)  but  where  the  answer  is  not  a  positive 
denial  of  the  same  fact,  it  is  different,  (Hughes  v.  Garner,  2  Y  &  C.  Exch.  Ca.  328.) 
But  the  court  has  made  a  decree  on  the  testimony  of  one  witness,  uncontradicted  by 
the  answer. 


LE     NEVE     V.     LE     NEVE.  131 


'-'Whereas,  by  the  different  and  secret  way  of  conveying  lands,  &c.,  such  as 
are  ill-disposed  have  it  in  their  power  to  commit  frauds,  and  frequently  do  so, 
by  means  whereof  several  persons  have  been  undone  in  their  purchases  and 
mortgages,  hij  prior  and  secret  conveyances,  and  fraudulent  incumbrances." 
Then  comes  the  enacting  clause  : — "■  That  a  memorial  of  all  deeds  and  convey- 
ances which,  after  the  27th  of  September,  1709,  shall  be  made  and  executed, 
and  of  all  wills  and  devises  in  writing,  whereby  any  honors,  manors,  lands,  kc, 
in  the  county  of  Middlesex,  may  be  any  way  affected  in  law  or  equity,  may  be 
registered  in  such  manner  as  is  after  directed;  and  that  every  such  deed  or 
conveyance  that  shall,  at  any  time  after,  &c.,  be  made  and  executed,  shall  be 
adjudged  fraudulent  and  void  against  any  subsequent  purchaser  or  mortga- 
gee  for  valuable  consideration,  unless  such  memorial  be  registered  as  by  this 
Act  is  directed,  ^before  the  registering  of  the  memorial  of  the  deed  or 
conveyance  under  which  such  subsequent  purchaser  or  mortgagee  shall  ^  ^~^^ 
claim,"  &c. 

What  appears  by  the  preamble,  to  be  the  intention  of  the  Act  ? 
Plainly  to  secure  subsequent  purchasers  and  mortgagees  against przor  secret 
conveyances  and  fraudulent  incumbrances. 

Where  a  person  had  no  notice  of  a  prior  conveyance  there  the  re"-istcrin"- 
his  subsequent  conveyance  shall  prevail  against  the  prior;  but  if  he  had  notice 
of  a  prior  conveyance,  then  that  was  not  a  secret  conveyance  by  which  he 
could  be  prejudiced. 

The  enacting  clause  says,  that  every  such  deed  shall  he  void  against  any 
subsequent  purchaser  or  mortgagee,  unless  the  memorial  thereof  be  regis- 
tered, &c. ;  that  is,  it  gives  him  the  legal  estate,  but  it  does  not  say  that  such 
subsequent  purchaser  is  not  left  open  to  any  equity  which  a  prior  purchaser 
or  incumbrancer  may  have;  for  he  can  be  in  no  danger  when  he  knows  of  an- 
other incumbrance,  because  he  might  then  have  stopped  his  hand  from  pro- 
ceeding. 

This  case  has  been  very  properly  compared  to  cases  on  the  27  Hen.  8,  for 
inrolment  of  bargains  and  sales. 

That  Act  is  formed  pretty  much  in  the  same  manner  with  this. 
The  words  of  the  enacting  clause: — "That  from,  &c.,  no  manors,. lands, 
tenements,  &c.,  shall  pass,  alter,  or  change  from  one  to  another,  whereby  any 
estate  of  inheritance  or  freehold  shall  be  made,  or  take  effect  in  any  person  or 
persons,  or  any  use  thereof  to  be  made  thereof,  by  reason  only  of  any  baro^ain 
and  sale  thereof,  except  the  same  bargain  and  sale  be  by  writing,  indented, 
sealed,  and  inrolled  in  one  of  the  King's  Courts  of  Record  at  Westminster,  or 
else  within  the  same  county,  &c.,  where  the  same  manors,  &c.,  so  bargained 
and  sold  do  lie,  &c. ;  and  the  same  inrolment  to  be  had  and  made  within  six 
months  next  after  the  date  of  the  same  writings,  indented,  &c.,  nor  any  use 
shall  pass  thereof  from  one  to  another." 
*What  is  the  meaning  of  this  ? 

Before  the  making  of  the  Act,  any  paper  writing  passed  the  use  l*^^l 
from  the  bargainor  to  the  bargainee,  whereby  great  mischief  arose;   for  it 


132  NOTICE. 

entangled  the  purchasers,  affected  and  injured  the  Crown,  and  was  contrary 
to  the  rule  of  law,  which  required  notoriety  in  purchases  by  feoffment  and 
livery,  &c. 

But  what  has  been  the  construction  of  this  statute  ever  since  ?  Why,  if  a 
subsequent  bargainee  has  notice  of  a  prior,  he  is  equally  affected  with  that  notice 
as  if  the  prior  purchase  had  been  a  conveyance  by  feoffment  and  livery,  &c. 

The  operation  of  both  Acts  of  Parliament  and  construction  of  them  is  the 
same;  and  it  would  be  a  most  mischievous  thing  if  a  person,  taking  that  ad- 
vantage of  the  legal  form  appointed  by  an  Act  of  Parliament,  might  under 
that  protect  himself  against  a  person  who  had  a  prior  equity,  of  which  he  had 
notice. 

The  cases  put  by  the  Attorney-General  are  very  material : — 

"  Suppose,"  said  he,  "the  defendant  Mary  had,  by  letter  of  attorney,  em- 
powered Norton  to  transact  the  affair  with  her  husband,  and  he  by  means  of 
this  agency  comes  to  the  knowledge  of  the  prior  articles  and  settlement,  would 
not  this  affect  the  principal  ?  Or  suppose  a  purchaser  of  lands  in  a  register 
county  orders  his  attorney  to  register  it,  and  he  neglects  to  do  it,  and  then 
buys  the  estate  himself,  and  registers  his  own  conveyance,  shall  this  be  allowed 
to  prevail 't 

It  certainly  shall  not ;  for  such  a  purchaser  is  out  of  the  consequences  which 
the  Register  Act  guards  against,  of  imposition  from  a  prior  secret  conveyance, 
as  he  had  personal  knowledge  of  the  first. 

There  have  been  three  cases  on  the  Register  Act : — 

1st,  Lord  Forbes  v.  Nelson,  4  Bro.  P.  C.  189,  Toml.  ed. 

2nd,  Blades  v.  Bladei<,  1  Eq.  Ca.  Abr.  358,  pi.  12. 

ord,  Cheval  v.  Nichols,  10th  December,  1725,  in  the  Exchequer,  1  Stra. 
(-.64. 

The  first^  arose  originally  in  Ireland,  where  there  is  *a  general  Re- 
L  '  -•  gister  Act,  and  heard  on  appeal  to  the  House  of  Lords,  in  England, 
22nd  and  23i-d  February,  1722. 

The  Earl  of  Granard,  father  of  Lord  Forbes,  was  seised  of  a  large  estate  of 
which  he  was  tenant  for  life,  with  remainder  to  his  ^rst  and  every  other  sou 
in  tail,  and  had  a  power  of  leasing  for  lives  at  the  best  rent. 

The  Register  Act  in  Ireland  passed  the  6th  Anne ;  Lord  Granard  granted 
a  lease  for  three  lives  at  the  rent  of  £30  a  year,  which  was  not  registered. 

His  Lordship,  being  greatly  in  debt,  came  to  an  agreement  with  Lord 
Forbes,  his  eldest  son,  by  the  agency  of  jMr.  Steward,  to  take  upon  him  the 
payment  of  certain  debts  of  his  father,  and  so  secure  a  jointure  to  his  mother- 
in-law,  and  an  annuity  to  his  father. 

The  estate  was  conveyed  to  Mr.  Justice  Doyne  and  Mr.  Justice  Nutt,  as 
trustees,  during  the  life  of  the  father. 

Mr.  Steward  had  notice  of  this  lease  during  the  treaty  between  Lord  Granard 
and  Lord  Forbes. 

'  Lord  Forbes  v.  Nelson. 


LE     NEVE      V.     LE     NEVE. 


The  conveyance  to  the  trustees  being  registered,  they  brought  an  ejectment 
against  the  lessee  of  the  leasehold  estate ;  and  it  was  heard  before  Lord  Middle- 
ton,  Lord  Chancellor  of  Ireland,  in  February,  1721,  who  then  made  a  declara- 
tion rather  than  a  decree,  that  the  conveyance  was  void  as  against  the  lessee. 
It  came  on  again  before  him  the  17th  of  February,  1721,  and  he  then  deter- 
mined, there  was  full  notice  of  the  lease  to  Lord  Forbes,  and  awarded  a  per- 
petual injunction  from  time  to  time. 

The  judgment  of  the  House  of  Lords  was,  That  the  said  decree  be  reversed, 
and  that  all  proceedings  at  law  of  the  appellants  against  the  respondents 
should,  during  the  life  of  Lord  Granard,  be  stayed,  on  lessee's  paying  the 
rents,  performing  the  covenants,  (fee.  ;  but  that,  after  the  death  of  Lord 
Granard,  Lord  Forbes  might  be  at  liberty  to  try  the  tenant's  right  to  the  lease. 

The  decree  was  reversed,  not  because  Lord  Middleton  had  proceeded  on  a 
wrong  principle,  but  had  drawn  a  wrong  inference  from  it;  for  Lord  Forbes 
did  not  insist  merely  on  the  register,  but  that  the  lease  was  made  contrary 
*to  the  power;  and  therefore  the  Lord  Chancellor  of  Ireland  was  mis-  r^q.^-i 
taken,  and  wrong  in  decreeing  the  lease  to  be  good  in  every  respect  :  " 
and  the  House  of  Lords  set  the  decree  right  only  as  to  this  particular  part, 
that,  after  the  death  of  Lord  Granard,  the  estate  determined ;  and  therefore 
left  it  open  to  Lord  Forbes  to  dispute  whether  it  was  a  lease  pursuant  to  the 
power,  but  gave  no  relief  as  to  the  Register  Act. 

The  case  of  Blades  v.  Blades^  came  before  Lord  Chancellor  King,  2nd  May 
1727. 

William  Blades,  in  1716  devised  certain  lands  to  his  wife  for  her  life,  and 
after  her  death  to  his  nine  children.  The  wife  enters,  but  does  not  register 
the  will.  The  heir-at-law  mortgages  the  estate,  and  has  it  registered,"aud, 
upon  a  bill  brought  against  him,  denies  notice  of  the  will.  But  it  was  proved 
in  evidence  that  he  had  notice  :  and  the  Court  said,  that,  having  notice  of  the 
first  purchase,  (though  it  was  not  registered,)  bound  him ;  and  that  getting  his 
own  purchase  first  registered  was  a  fraud;  the  design  of  those  Acts  being  only 
to  give  parties  notice  who  might  otherwise  without  such  registry  be  in  danger 
of  being  imposed  on  by  a  prior  purchase  or  mortgage,  which  they  are  in"no 
danger  of  when  they  have  any  notice  thereof  in  any  manner,  though  not  by 
the  registry ;  and  that  they  would  never  suffer  any  Act  of  Parliam'ent  made 
to  prevent  fraud  to  be  a  protection  to  fraud ;  and  therefore  decreed  for  plain- 
tiff, looJciiKj  upon  the  transaction  between  the  heir-at-law  and  mortgagee  to  be 
collusive. 

I  mention  this,  not  only  as  a  material  authority,  but  as  determined  by  Lord 
King,  who,  we  all  know,  was  as  willing  to  adhere  to  the  common  law  as  any 
judge  that  ever  sat  here. 

The  other  case,  of  Chevaly.  mdio/s,^  was  in  the  Court  of  Exchequer  the  10th 
of  December,  1725,  before  Lord  Chief  Baron  Gilbert,  and  is  a  clear  authority 
for  giving  relief  against  the  Register  Act  upon  an  equity  of  notice.     But  then 

1  1  Eq.  Ca.  Ab.  358,  pi.  12.  2  j  gtv^i.  6G4. 


134  NOTICE. 

there  were  charges  of  fraudulent  circumstances  besides,  and  therefore  not  so 
similar  to  the  present. 

r*qq-i  *Consider,  therefore,  what  is  the  ground  of  all  this,  and  particu- 
larly  of  those  cases  which  went  on  the  foundation  of  notice  to  the 
agent.  The  ground  of  it  is  plainly  this  :  That  the  taking  of  a  legal  estate 
after  notice  of  a  prior  right,  makes  aj^erson  mala  fide  jrurchaser  ;  and  not, 
that  he  is  not  a  purchaser  for  a  valuable  consideration  in  every  other  respect. 
This  is  a  species  of  fraud  and  dolus  malus  itself;  for  he  knew  the  first  purchaser 
had  the  clear  right  of  the  estate,  and  after  knowing  that,  he  takes  away  the 
right  of  another  person  by  getting  the  legal  estate. 

And  this  exactly  agrees  with  the  definition  of  the  civil  law  of  dolus  malus. 
Dig.  Lib.  4,  tit.  3  :  "  Dolum  malum  Servius  quidem  ita  definit,  machina- 
tionein  quandam  alterius  decijriendi  causa,  cum  aliud  simulatur,  et  aliud 
agitur,  Labeo  autem, posse  et  sine  simidatione  id  agi  ut  quis  circumveniatur  : 
posse  et  sine  dolo  malo  aliud  agi,  aliud  slmulari :  sicuti  faciunt,  qui  per 
ejusmodi  dissimulationem,  deserviant,  et  tuentur  vel  sua  vel  aliena.  Itaque 
ipse  sic  definiit  dolum  malum  esse  omnen  calliditatem  fallaciam  machinationem 
ad  circumveniendum,  fallendum,  decipiendum  alterum  adhibitam.  Laheonis 
definitio  vera  estT 

Now,  if  a  person  does  not  stop  his  hand,  but  gets  the  legal  estate  when  he 
knew  the  right  was  in  another,  machinatur  ad  circumveniendum.  It  is  a 
maxim,  too,  in  our  law,  that //■«?<«  et  dolus  nemini patrocinari  dchent.  Vide 
Co.,  3  Rep.  78  ;  7  Eep.  38. 

Fraud,  or  mala  fides,  therefore,  is  the  true  ground  on  which  the  Court  is 
governed  in  the  cases  of  notice ;  and  it  is  a  consequence  of  the  decision  of  the 
former  question,  that  notice  to  the  agent  is  sufiicient ;  for  if  the  ground  is 
the  fraud,  or  mala  fides,  of  the  party,  then  it  is  all  one  whether  by  the  party 
himself  or  his  agent ;  still  it  is  a  machinatio  ad  circumveniendum,  and  the 
putting  a  copy  of  the  first  articles  and  settlement  into  Norton's  hands,  to  take 
the  opjinioyi  of  counsel  in  what  mariner  they  cotdd  he  set  aside,  is  a  contrivance 
to  circumvent. 

It  has  been  said,  if  this  woman  has  been  imposed  on  by  her  husband,  she, 
instead  of  cheating,  has  been  cheated. 

p.^o_£-i       *But,  then,  who  ought  to  suiFer  ? — the  person  intrusting  an  agent, 
or  a  stranger  who  did  not  employ  him?     He,  certainly,  who  trusts 
most,  ought  to  suflTer  most. 

Mrs.  Ilatt,  the  third  mortgagee  in  the  case  in  2  Vern.  574,  mentioned 
before,  was  imposed  on ;  and  so  was  Moore,  in  the  other  case  reported  there,^ 
clearly  imposed  on;  and  yet,  if  this  was  to  be  any  excuse,  it  would  make  all 
the  cases  of  notice  very  precarious ;  for  it  seldom  happens  but  the  agent  has 
imposed  on  his  principal ;  and,  notwithstanding  that,  the  person  trusting 
ought  to  suff"cr  for  his  ill-placed  confidence. 

Therefore,  in  both  respects,  as  agent  and  trustee,  notice  to  Joseph  Norton 

I  Jennings  v.  Moore,  2  Vern.  609. 


LE     NEVE      V.      LE      XEVE.  135 

is  notice  to  defendant  Mary  likewise.  And  as  to  the  Registry  Act,  here  is 
sufficient  equity  in  the  plaintiff  to  postpone  the  second  articles  and  settlement, 
notwithstanding  those  only  have  been  registered.     And  decreed  accordingly. 


No  equitable  doctrine  is  better  established  than  that  so  clearly  and  forcibly 
laid  down  by  Lord  Hardwicke  in  the  principal  case,  viz.  :  that  the  person  who 
purchases  an  estate  (cdthough  for  valuable  consideratio7i)  after  notice  of  a 
prior  equitable  right,  makes  himself  a  mala  fide  jyurchaser ,  and  will  not  he 
enabled,  hy  getting  in  the  leg(^l  estate,  to  defeat  such  prior  equitable  interest, 
but  will  be  held  a  trustee  for  the  benefit  of  the  person  whose  right  he  sought 
to  defeat.  "  If,"  says  his  Lordship,  ''  a  person  does  not  stop  his  hand,  but 
gets  the  legal  estate,  when  he  knew  the  right  in  equity  was  in  another, 
machinatur  ad  subvenienduui ;  and  it  is  a  maxim  in  our  law,  that /raws  e^ 
dolus  nemini  patrocinari  detent.  Fraud,  or  mala  fides,  therefore,  is  the  true 
ground  on  which  the  Court  is  governed  in  cases  of  notice." 

It  may  be  laid  down  as  a  general  rule,  that  a  purchaser,  with  notice  of  a 
right  in  another,  is  in  equity  liable,  to  the  same  extent,  and  in  the  same  man- 
ner, as  the  person  from  whom  he  made  the  purchase.  For  instance,  if  a  per- 
son contracts  to  sell  an  estate,  or  to  grant  leases  thereof,  a  purchaser,  with 
notice  of  such  contracts,  is  liable  to  the  same  equity,  stands  in  the  same  place, 
and  is  bound  to  do  that  which  the  vendor,  whom  he  represents,  would  be 
bound  to  do  by  decree.  Thus,  in  an  early  case,  A.  contracted  with  B.. to 
purchase  lands  of  him  ;  and  afterwards  C,  on  *behalf  of  his  son,  pur-  r:!cq--i 
chased  the  same  lands,  and  took  a  conveyance  from  B.  to  his  (C's)  son 
in  fee.  On  a  bill  by  A.  to  be  relieved  against  this  conveyance,  the  son 
pleaded  himself  to  be  a  purchaser  bona  fide,  without  any  notice  of  B.'s  con- 
tract with  the  plaintiff,  and  without  any  trust  for  his  father.  But,  it  appear- 
ing that  C,  the  father,  had  notice  of  the  plaintiff's  contract  before  he  pur- 
chased for  his  son,  the  Court  decreed  in  favor  of  the  plaintiff:  Merry  v.  Abney, 
1  Ch.  Ca.  38.  See  also  Ferrars  y.  Cherry,  2  Vern.  384;  Jackson's  case, 
Lane,  60;  Earl  BrooJce  v.  Bulkeley,  2  Ves.  498;  Daniels  y.  Davison,  16 
Yes.  249 ;  Crofton  v.  Ormsby,  2  S.  &  L.  583 ;  Kennedy  v.  Daly,  1  S.  &  L. 
355;  Field  v.  Boland,  1  D.  &  Walsh,  37;  Potter  v.  Sanders,  6  Hare,  1. 

Upon  the  same  principle,  an  estate  in  the  hands  of  a  subsequent  purchaser, 
or  mortgagee,  with  notice  of  a  prior  defective  mortgage,  will  be  bound  by  it. 
Thus,  in  a  case  where  a  person  lent  money  on  a  surrender  of  copyholds  which 
became  void  for  want  of  presentment,  and  afterwards  another  person  purchased 
the  same  lands  from  the  mortgagor,  with  notice  of  the  prior  surrender,  and 
took  a  surrender,  and  was  admitted,  the  Court  decreed  the  subsequent  purchaser 
cither  to  pay  the  mortgagee  his  money,  or  to  surrender  to  him  the  legal 
estate  :  Jennings  v.  3Ioore,  2  Vern.  609 ;  S.  C,  2  Bro.  P.  C.  278,  Toml.  ed. 

So,  also,  a  purchaser  or  mortgagee  of  the  legal  estate,  with  notice  of  an 
equitable  mortgage  by  deposit  of  title-deeds,  will  be  held  a  trustee  for  the 


13G  NOTICE. 

equitable  mortgagee  to  the  amount  of  his;  charge  :  Birch  v.  EUav.ies,  2  Aust. 
427. 

So,  a  purchaser  having  notice  of  an  equitable  lien  for  unpaid  purchnse-money 
will  be  bound  by  it  :  Mackreth  v.  Summons,  15  Ves.  340  ;  ante,  Vol.  1,  p. 
267;  Gra7U  v.  Milh,  2  V.  &  B.  800. 

So,  also,  a  purchaser  -with  notice  of  a  trust  will  be  bound  in  the  same  man- 
ner as  the  person  from  whom  he  purchased  :  Dunhar  v.  TrexlcnnicJc,  2  Ball  & 
B.  319;  Paiolcttx.  Attorney- General,  Hard.  465;  Bnrgesa  v.  Wheafe,  1  Eden, 
195;  Bovci/  V.  Smith,  1  Vern.  149;  Mansell  v.  Mmisell,  2  P.  Wms.  6S1  ; 
Phayre  v.  Perce,  3  Dow,  129;  Adair  v.  Shaw,  1  S.  &  L.  262  ;  Wl<jg  v.  Witjg, 
1  Atk.  382;  Mead  v.  Lord  Orrery,  3  Atk.  238;  Machreth  v.  Symmons,  15 
Ves.  350;  Saunders  v.  Dehew,  2  Vern.  271  ;  and  see  ante,  p.  7. 

In  the  principal  case,  the  postponement  of  a  registered,  to  an  unregistered 
conveyance,  of  which  the  purchaser  had  notice,  seems  to  have  carried  the  doc- 
trine of  equity  upon  this  subject  to  a  great  length,  and  even  to  have  infringed 
upon  the  policy  of  the  Eegistration  Acts.  "  It  has,"  says  Sir  William  Grant, 
P^op-i  M.  R.,  "  been  much  doubted  whether  courts  ought  ever  to  have  *suf- 
^  fered  the  question  of  notice  to  be  agitated  as  against  a  party  who  has 

duly  registered  his  conveyance ;  but  they  have  said,  '  We  cannot  permit  fraud 
to  prevail ;  and  it  shall  only  be  in  cases  where  the  notice  is  so  clearly  proved 
as  to  make  it  fraudulent  in  the  purchaser  to  take  and  register  a  conveyance  in 
prejudice  to  the  known  title  of  another,  that  we  will  suffer  the  registered  deed 
to  be  affected  :'  "  Wyatt  v.  Bartoell,  19  Ves.  439.  However,  Le  Neve  v.  Le 
Neve  has  been  always  considered  a  binding  authority,  although  it  may  perhaps 
be  regretted  that  notice  of  unregistered  deeds  should,  under  any  circumstances, 
be  binding  as  against  a  person  claiming  under  a  deed  properly  registered. 
See  Co.  Litt.  290,  b,  n.  13.     Ford  v.  White,  16  Beav.  120,  123,  124. 

It  has  been  held  that  a  conveyance  of  lands  in  Middlesex,  by  settlement 
upon  the  marriage  of  the  settlor,  registered  under  the  statute  7th  Anne,  c. 
20,  was  effectual  against  a  prior  unregistered  conveyance,  notwithstanding  the 
party  claiming  under  the  settlement  had  notice  of  the  unregistered  conveyaucc 
after  the  marriage,  but  before  the  register  of  the  settlement.  El^ry  v.  Lut- 
ye.ns,  8  Hare,  159. 

Registration  is  not  of  itself  notice,  so  that  a  prior  equitable  incumbrance  will 
not,  although  registered,  affect  a  subsequent  purchaser  without  notice  who  has 
obtained  the  legal  estate.  Morecuck  v.  Dichiiis,  Amb.  ()7i^;  Bwsliell  v.  Bushc/f, 
1  S.  &L.  103. 

There  is,  however,  a  material  difference  between  the  Register  Act  of  Ireland 
and  those  of  England.  By  the  Irish  Act,  6  Anne,  c.  2,  an  absolute  priority 
is  expressly  given  to  the  instruments  first  registered,  so  that  a  subsequent  pur- 
chaser for  value  having  the  legal  estate,  although  he  has  not  notice  of  an  equi- 
table estate  previously  registered,  will  be  bound  by,  and  compelled  to  give 
effect  to,  it.  See  Bushell  v.  Jjitshell,  1  S.  &  L.  98  ;  Latouche  v.  Lord  Dun- 
rniiy.  Id.  1.59,  160;  Drew  v.  L»rd  Nnrhunj,  9  Ir.  Eq.  Rep.  171;  3  J.  &  L. 
267;   Thompson  v.  Simpmn,  1   Dru.  k  ^Var.  459;  Mill  v.  /////,  12  Ir.  Eq. 


LE     NEVE     V.      LE     NEVE.  137 

Hep.  107  ;  3  H.  L.  C:is.  828;  Hunter  v.  Kennnhj,  1  Ir.  Ch.  Kcp.  148;  Cor- 
hett  V.  De  Canti'llon,  5  Ir.  Ch.  Hep.  12G.  The  doctrine  of  notice  has  no  opera- 
tion with  reference  to  British  ships  duly  registered.  See  Ilajhes  v.  Morris, 
2  De  G.  Mac.  &  G-.  349  ;  MCalmont  v.  Rankm,  2  De  G.  Mac.  &  Vx.  403. 

It  may  here  be  observed,  that  it  has  been  long  since  settled,  that  if  a  persons- 
purchases  for  valuable  consideration  with  notice,  from  a  person  who  bought 
without  notice,  he  may  shelter  himself  under  the  first  purchaser,  for  otherwise, 
a  bona  fide  purchaser  would  be  unable  to  deal  with  his  property,  and  the  sale 
of  estates  would  be  very  much  clogged  :  {Loivther  v.  Carlton,  2  Atk.  242;) 
and,  except  ^perhaps  in  the  case  of  a  charity,  {East  GrimsteiuVs  case,  p  ^.t--i 
Duke,  64,)  if  a  person  who  has  notice  sells  to  a  bona  fide  purchaser  for 
a  valuable  consideration,  without  notice,  the  latter  may  protect  his  title.  See 
Harrison  v.  Forth,  Prec  Ch.  51,  the  leading  case  upon  both  branches  of  this 
doctrine.  There  A.  purchased  an  estate,  with  notice  of  an  incumbrance,  or 
that  it  was  redeemable,  and  then  sold  to  B.,  who  had  no  notice  ;  who  after- 
wards sold  it  to  C,  who  had  notice;  the  Master  of  the  Rolls  held,  that  the  first 
notice  to  A.,  the  first  purchaser,  was  thereby  revived,  and  that  C,  the  last 
purchaser,  should  be  liable  to  the  incumbrance  or  redemption  as  if  it  had  never 
been  in  the  hands  of  one  who  had  no  notice;  but  afterwards,  on  appeal  to  Lord 
Keeper  Somers,  it  being  urged,  that,  in  such  case,  an  innocent  purchaser  without 
notice  might  be  forced  to  keep  his  estate  and  could  not  sell  it,  and  should  be 
accountable  for  all  the  profits  received  ab  initio,  his  Lordship  held,  that  though 
A.  and  C.  had  notice,  yet  if  B.  had  no  notice,  the  plaintifi"  could  not  be  relieved 
against  the  defendant  C.  The  doctrine  laid  down  in  this  case  has  ever  since 
been  adhered  to;  see  Brandlyn  v.  Ord,  1  West,  Rep.  512;  S.  C,  1  xVtk.  571; 
Lowther  v.  Carlton,  2  Atk.  242  ;  Ferrars  v.  Cherri/,  2  Vern.  383 ;  Mcrtins  v. 
JoUiffe,  Amb.  313;  Sweet  v.  Soiithcote,  2  Bro.  C.  C.  GG;  M' Queen  v.  Far- 
qiihar,  11  Ves.  407,  478. 

Since,  however,  as  a  general  rule  persons  taking  equitable  interests  take/'^'^'' 
subject  to  all  the  equities  affecting  them,  an  equitable  incumbrancer  on  pro- 
perty, who  has  distinct  notice  of  a  prior  incumbrance,  cannot  by  concealing  his 
knowledge  from  a  party  claiming  under  him,  make  his  security  more  extensive, 
or  give  a  better  rigiit  to  his  assignee  than  that  which  he  himself  possesses. 
Thus,  in  Ford  v.  White,  IG  Beav.  120,  property  in  Middlesex  was  mortgaged 
to  A.,  and  afterwards  to  B.,  and  subsequently  to  C,  with  notice  of  B.'s  incum- 
brance. C.  registered  his  mortgage'  before  B.,  and  afterwards  assigned  to  D., 
who  had  no  notice  of  B.'s  mortgage.  It  was  held  by  Sir  John  Romilly,  M. 
R.,  that  as  C.'s  interest  was  equitable,  he  could  not  by  assigning  it  to  D.  with- 
out notice,  put  him  in  a  better  situation  than  himself,  and  consequently  that 
D.  was  not  entitled  to  priority  over  B. 

If  a  trustee  conveys  to  a  person  who  has  no  notice  of  the  trust,  and  then 
takes  a  reconveyance,  he  having  notice  of  the  trust,  it  attaches  on  him  :  Keii- 
iiedij  V.  Dahj,  1   S.  ct  L.  379. 

A  purchaser  for  valuable  consideration  of  an  estate,  even  with  notice  of  a 


138  NOTICE. 

voluntary  settlement,  will  not  be  affected  by  it :   Buckle  v.  Mitchell,  18  Yes. 
100  ;  ante,  Vol.  1,  p.  233. 

r^T-.-,  *Next,  as  to  ichat  constitutes  notice.'] — Notice  is  eitlier  actual  or 
constructive. 
1st.  As  to  actual  notice,  it  will  be  unnecessary  to  say  anything  except  this : 
that  mere  vague  reports  from  strangers,  or  mere  general  assertions  that  some 
other  persons  claim  a  title,  is  not  sufficient  to  affect  a  person  with  actual  notice, 
{Wildgoose  v.  Wayland,  Gouldsb.  147,  pi.  67;  Jollandv.  Stainhridge,  3  Ves. 
478 ;  Fnj  V.  Porter,  1  Mod.  300 ;  Butcher  v.  Stapehj,  1  Vern.  363.)  Such 
notice,  in  order  to  be  binding,  must  proceed  from  some  person  interested  in 
the  property:  Barnhart  v.  Greenshiclds,  9  Moore's  P.  C.  C.  36. 

2d.  As  to  constructive  notice. — Constructive  notice  is  defined  to  be  in  its 
nature  no  more  than  evidence  of  notice,  the  presumption  of  which  is  so  violent, 
that  the  Court  will  not  even  allow  of  its  being  controverted  :  per  Eyre,  C.  B., 
in  FliLmh  v.  Fluitt,  2  Anst.  438  j  and  see  Kennedy  v.  Green,  3  My.  &  K.  719. 
It  is  by  no  means  an  easy  matter  to  say  what  amounts  to  constructive  notice  j 
for  much  depends  upon  the  circumstances  of  each  particular  case,  and  the  posi- 
tion of  the  persons  concerned  in  it.  However,  the  able  exposition  of  the  law 
in  a  recent  case,  by  the  Vice-Chancellor  Wigram,  although  showing  an  anxiety, 
as  far  as  possible,  to  avoid  the  appearance  of  defining  what  in  the  abstract  is 
to  be  deemed  constructive  notice  in  equity,  has  cleared  the  subject  of  much 
difficulty.  "  It  is  scarcely  possible,"  observes  his  Honor,  "  to  declare  a  priori 
what  shall  be  deemed  constructive  notice,  because,  unquestionably,  that  which 
would  not  affect  one  man  may  be  abundantly  sufficient  to  affect  another.  But 
I  believe  I  may,  with  sufficient  accuracy  for  my  present  purpose,  and  without 
dan"-er,  assert,  that  cases  in  which  constructive  notice  has  been  established  re- 

111 

solve  themselves  into  two  classes  :  first,  cases  in  which  the  party  charged  has 
had  actual  notice  that  the  property  in  dispute  was,  in  fact,  charged,  incumbered, 
•  or  in  some  way  affected  ;  and  the  Court  has  thereupon  bound  him  with  con- 
structive notice  of  facts  and  instruments,  to  a  knowledge  of  which  he  would 
have  been  led  by  an  inquiry  after  the  charge,  incumbrance,  or  other  circum- 
stance affecting  the  property  of  which  he  had  actual  notice ;  and,  secondly, 
cases  in  which  the  Court  has  been  satisfied,  from  the  evidence  before  it,  that 
the  party  charged  had  designedly  abstained  from  inquiry  for  the  very  purpose 
of  avoiding  notice. 

<<  The  proposition  of  law,  upon  which  the  former  class  of  cases  proceeds,  is 
not  that  the  party  charged  had  notice  of  a  fact,  or  instrument,  which,  in  truth, 
related  to  the  subject  in  dispute,  without  his  knowing  that  such  was  the  case; 
but  that  he  had  actual  notice  -that  it  did  so  relate.  The  proposition  of  law, 
upon  which  the  second  class  *of  cases  proceeds,  is,  not  that  the  party 
t  *^^^  charged  had  incautiously  neglected  to  make  inquiries,  but  that  he  had 
designedly  abstained  from  such  inquiries,  for  the  purpose  of  avoiding  knoxc- 
ledge, — a  purpose  tchich,  if  proved,  xcould  clearly  show  that  he  had  a  suspi- 
cion of  the  truth,  and  a  fraudulent  determination  not  to  learn  it.  If,  in 
short,  there  is  not  actual  notice  that  the  property  is  in  some  way  affected,  and 


LE     NEVE     V.     LE     NEVE.  139 


no  fraudulent  turning  away  from  a  knowledge  of  facts  which  the  res  gestas 
would  sugo-est  to  a  prudent  mind, — if  mere  icant  of  caution,  as  distinguished 
from  fraudulent  and  wilful  blindness,  is  all  that  can  he  imputed  to  the  pur- 
chaser,— there  the  doctrine  of  constructive  notice  will  not  apply ;  there  the 
purchaser  will,  in  equity,  be  considered,  as  in  fact  he  is,  a  bona  fide  purchaser 
without  notice  :"  Jones  v.  Smith,  1  Hare,  55.  See,  also,  Hare  v.  Lord  Eg<- 
mont,  4  De  G-.  Mac.  &  O.  473  ;  Attorney- General  v.  Stephens,  6  De  G.  Mac.  & 
Gr.  111.  It  will  be  found,  on  examining  the  cases,  that  they  fall  within  one 
or  other,  or  both  of  these  propositions. 

Whatever  is  sufficient  to  put  a  person  upon  inquiry  is  good  notice ;  that  is, 
where  a  man  has  sufficient  information  to  lead  him  to  a  fact,  he  shall  be 
deemed  conusant  of  it.  Thus,  if  a  man  knows  that  the  legal  estate  is  in  a 
third  person  at  the  time  he  purchases,  he  is  bound  to  take  notice  of  what  the 
trust  is :  Anon.  Freem.  Ch.  Ca.  137,  c.  171.  Upon  the  same  principle  notice 
that  the  title  deeds  are  in  another  man's,  possession  may  be  held  to  be  notice 
of  any  claim  which  he  has  upon  the  estate,  especially  if  the  person  having 
such  notice  appears  studiously  to  have  avoided  inquiry  for  what  purposes  they 
were  deposited,  or  the  conveyance  to  him  is  to  secure  an  antecedent  debt : 
{Birch  v.  Ellames,  2  Anst.  427;  Hiern  v.  Mill,  13  Ves.  114;  Dri/den  v.  Frost, 
3  My.  &  Cr.  670,  673 ;)  but  the  mere  absence  of  the  title  deeds  has  never 
been  held  sufficient  per  se  to  affect  a  party  with  notice,  if  he  has  bona  fide  in- 
quired for  the  deeds,  and  a  reasonable  excuse  has  been  given  for  the  non- 
delivery of  them ;  for  in  that  case  the  Court  cannot  impute  fraud,  or  gross  or 
wilful  negligence  to  him,  {Plumb  v.  Fluitt,  2  Anst.  432 ;  Evans  v.  Blcknell, 
6  Ves.  174;  Farroiv  v.  Rees,  4  Beav.  18;  Hewitt  v.  Loosemore,  9  Hare,  449, 
458;  Finch  v.  Shaiv,  19  Beav.  500;  S.  C  nom.  Colyer  v.  Finch,  5  H.  L. 
Cas.  905.)  But  the  Court  will  impute  fraud,  or  gross  and  wilful  negligence 
to  a  person  dealing  respecting  an  estate,  if  he  omits  all  inquiries  as  to  the 
deeds.  Worthingfon  v.  Morgan,  16  Sim.  547;  Heioitt  v.  Loosemore,  9  Hare, 
458  ;  Finch  V.  Shaio,  19  Beav.  511 ;  Allen  v.  Knight,  5  Hare,  272 ;  11  Jur. 
527,  and  see  note  to  Russell  v.  Russell,  Vol.  1,  p.  553  ;  Whitbread  v.  Jordan, 
1  Y.  &  C,  Exch.  Ca.  303  ;  and  see  Jones  v.  Smith,  1  Hare,  64  ;  1  Ph.  255. 

*A  general  recital  in  a  deed,  that  there  were  mortgages  on  the  estate, 
was  held  to  affect  parties  claiming  under  the  deed  with  notice :  Far- 
roio  V.  Rees,  4  Beav.  18. 

In  Tai/lor  v.  Baker,  5  Price,  306,  a  person  had  made  an  equitable  mort- 
gage to  A.,  and  afterwards,  giving  a  security  to  another  person,  stated  that  he 
had  given  a  judgment  or  warrant  of  attorney  to  A.  for  money  borrowed  of 
him ;  and  this  was  held  to  be  sufficient  notice  of  the  mortgage.  This  case 
has  been  recognized  and  approved  of  by  Lord  Cottenham,  in  Penni/  v.  Watts, 
1  Hall  &  T.  266  ;  1  Mac.  &  G.  150.  In  that  case,  on  the  marriage  of  the 
defendant  with  A.,  who,  under  the  will  of  her  former  husband,  was  entitled 
to  certain  real  estates,  charged  with  a  legacy  of  £2000,  payable  to  B.,  a  feme 
sole,  the  defendant  had  notice  that  B.,  while  sole,  had  released  this  legacy  to 
A.,  and  that  A.  had  in  consequence  devised  to  B.  a  certain  part  of  the  real 


140  NOTICE. 

estates;  it  was  held  by  Lord  Cottenliam,  reversing  the  decision  of  Sir  J.  L. 
Kuii>ht  Bruce,  V.  C,  (reported  2  De  G.  &  Sm.  501,)  that  the  knowledge  of 
these  facts  rendered  it  incumbent  on  the  defendant  to  have  made  further  in- 
quiries, and  affected  him  with  constructive  notice  of  an  equitable  title  ac- 
quired by  the  husband  of  B.,  under  a  subsequent  agreement  with  A.  to  have 
the  devised  estate  conveyed  to  him. 

Upon  the  same  principle  it  was  held  that  notice  of  a  charge  to  an  indefinite 
amount,  although  the  notice  was  inaccurate  as  to  the  particulars  or  extent  of 
the  charge,  was  sufficient  to  put  upon  inquiry  a  party  dealing  for  the  property 
subject  to  the  charge ;  and  though  the  actual  charge  afterwards  appeared  to 
be  incorrectly  described  in  the  notice,  it  was  nevertheless  sufficient,  as  a  ground 
for  giving  priority  for  the  true  amount  of  the  charge,  as  against  the  party  who 
received  the  incorrect  notice,  but  made  no  inquiry.  Glhson  v.  Inc/o,  6  Hare, 
112,  124.      And  see  Gurnei/  v.  Lord  Oranmorc,  5  Ir,  Ch.  Rep.  4oG. 

With  reference  to  the  case  of  Penv)j  v.  Watts,  it  must  be  remarked,  that  it 
has  been  considered  as  having  carried  the  doctrine  of  notice  too  far,  (Sugd. 
V.  &  P.  G29,  loth  ed.)  And  in  a  recent  case  in  Ireland,  Lord  Chancellor 
Brad}'^  said,  that  it  seemed  to  require  much  examination  before  it  could  be  re- 
ceived as  established  law.  Ahhott  v.  Gemghti/,  4  Ir.  Ch.  Rep.  23.  And  in 
another  case,  a  purchaser  was  held  not  to  be  fixed  with  notice  of  a  deed  by 
evidence  that  he  had  notice  of  an  annuity  created  by  that  deed,  which,  from 
the  notice  given  of  its  existence,  appeared  to  have  expired  many  years  before 
the  purchase.      Stqyhenson  v.  Bot/re,  5  Ir.  Ch.  Rep.  401. 

If  a  person  purchases  an  estate  which  he  knows  to  be  in  the  occupation  of 
another  than  the  vendor,  *he  is  bound  by  all  the  equities  which  the 
L  -'  party  in  such  occupation  may  have  in  the  land  ;  for  possession  is  prima 
facie  seisin,  and  the  purchaser  has,  therefore,  actual  notice  of  a  fact  by  which 
the  property  is  affected,  and  he  is  bound  to  ascertain  the  truth.  Thus,  if  a 
person  purchases  property  in  the  occupation  of  one  whom  he  supposes  to  be 
only  a  tenant  from  year  to  year,  he  will  be  held  to  have  notice  of  a  lease  under 
which  he  holds,  and  of  the  contents  of  it :  Taylor  v.  Stihhert,  2  Ves.  juu. 
437,  440;  M'herc  Lord  Rosslyii  says,  "I  have  no  difficulty  to  lay  down,  and 
am  well  warranted  by  authority,  and  strongly  founded  in  reason,  that  whoever 
purchases  an  estate  from  the  owner,  knowing  it  to  be  in  the  possession  of  ten- 
ants, is  bound  to  in(iuire  into  the  estates  these  tenants  have.  It  has  been  de- 
termined, that  a  purchaser  being  told  particular  parts  of  the  estate  were  in 
possession  of  a  tenant,  without  any  information  as  to  his  interest,  and  taking 
it  for  granted  it  was  only  from  year  to  year,  was  bound  by  a  lease  that  tenant 
had,  which  was  a  surprise  upon  him.  That  was  rightly  determined  ;  for  it 
was  sufficient  to  put  the  purchaser  upon  inquiry,  that  he  was  informed  the 
estate  was  not  in  the  actual  possession  of  the  person  with  whom  he  contracted  j 
that  he  could  not  transfer  the  ownership  and  possession  at  the  same  time;  that 
there  were  interests  as  to  the  extent  and  terms  of  which  it  was  his  duty  to  in- 
quire."     And  see  Jonoi  v.  Smith,  1  Hare,  GO. 

And  the  equity  of  the  tenant  extends  not  only  to  interests  connected  with 


LE      NEVE      V.      LE      NEVE.  141 

his  tenancy,  but  also  to  interests  under  collateral  agreements.  Thus,  if  the 
tenant  in  possession  has  entered  into  a  contract  for  the  purchase  of  the  estate, 
a  subsequent  purchaser  will  be  held  to  have  had  constructive  notice  of  the 
contract,  as  he  was  bound  to  make  inquiry  from  the  tenant,  which  would  have 
led  him  to  a  knowledge  of  it:  {Daniels  v.  Dacison,  16  Ves.  249;  S.  C,  17 
Ves.  433;  Lewis  v.  Bond,  18  Beav.  85;  Wilhrakam  v.  Livesey,  lb.  206; 
and  see  Crofton  v.  Ormshy,  2  S.  &  L.  583 ;  Mcux  v.  Malthy,  2  Swanst.  281 ; 
Poioell  v.  Dillon,  2  Ball  &  B.  416  ;  Bailey  v.  Richardson,  9  Hare,  734,  and 
the  comments  thereon  in  Barnhart  v.  Greenshields,  9  Moore  P.  C.  C.  33,  34;) 
even  although  the  interest  which  the  tenant  may  have  were  posterior  to  the 
lease  under  which  he  held:  Allen  v.  Antliony,  1  Mer.  282.  But  Daniels  v. 
Davison  has  always  been  considered  an  extreme  case,  beyond  which  the  doc- 
trine ought  not  to  be  extended.  Accordingly  it  was  said  by  Lord  Cottenham, 
then  Master  of  the  Rolls,  that  "  although  it  is  true  that  where  a  tenant  is  in 
possession  of  the  premises,  a  purchaser  has  implied  notice  of  the  nature  of 
his  title ;  yet  if,  at  the  time  of  the  purchase,  the  tenant  in  possession  was  not 
the  original  lessee,  but  *merely  held  under  a  derivative  lease,  and  hud 
no  knowledge  of  the  covenant  contained  in  the  original  lease,  it  had  ■-  ^-^ 
never  been  considered  want  of  due  diligence  in  the  purchaser,  which  was  to 
fix  him  with  implied  notice,  if  he  did  not  pursue  his  inquiries  through  every 
derivative  lessee,  until  he  arrived  at  the  person  entitled  to  the  original  lease, 
which  could  alone  convey  to  him  information  of  the  covenant :"  llanhury  v. 
Letchfield,  2  My.  &  K.  633;  Jones  v.  Smith,  1  Hare,  62.  And  in  Fenny  v. 
Watts,  it  seems  to  have  been  considered  doubtful,  whether  the  mere  occupa- 
tion by  a  person  of  property  would  be  notice  of  an  agreement  not  connected 
with  his  occupation.  See  2  De  Gr.  &  Sm.  150;  1  Mac.  k  G.  150;  1  Hall  & 
T.  266.     And  see  Nelthorpe  v.  Holgate,  1  Coll.  203. 

It  has  been  recently  laid  down  that  "  the  question  of  notice  concerning  the 
right  to  an  easement  is  like  those  cases  in  which  notice  of  possession  by  a 
tenant  of  land  is  notice  of  the  terms  of  his  holding."  Per  Sir  W.  Page 
Wood,  V.  C,  in  Hervey  v.  Smith,  1  K.  &  J.  394  ;  see  S.  C,  22  Beav.  299. 

If  the  possession  is  vacant,  the  purchaser  is  not  bound  to  inquire  as  to  the 
title  of  the  last  occupier,  and  will,  therefore,  not  have  constructive  notice 
of  the  information  he  might  have  obtained  by  such  inquiry :  Thus  in  Miles 
V.  Langley,  1  Buss.  &  My.  39,  where  a  person  purchased  an  estate  described 
as  "  late  the  residence  of  Thomas  Hellicar,"  and  it  appears  that  Thomas  Hel- 
licar  had,  theretofore,  held  and  occupied  the  land  in  question  under  an  agree- 
ment; it  was  argued  upon  the  authority  of  Daniels  v.  Davison,  that  the  pur- 
chaser was  bound  to  have  inquired  what  the  interest  of  Hellicar  was  under 
his  "  late  occupation ;"  but  Sir  J.  Leach,  V.  C,  held,  that  the  obligation  to 
inquire  did  not  arise  in  the  case  of  vacant  possession.  His  Honor  said,  that 
Lord  Eldon's  principle,  in  Daniels  v.  Davison,  could  not,  where  the  posses- 
sion was  vacant,  be  extended  to  the  last  occupier.  This  decision  was  con- 
firmed by  Lord  Brougham,  (2  Buss.  &  My.  626,)  upon  the  express  ground 
that  a  contrary  decision  would  have  extended  the  doctrine  laid  down  in  Da- 


142  NOTICE. 

mels  V.  Davison;  for,  in  that  case,  the  purchaser  had,  whereas  in  Miles  y. 
Langhy  he  had  not,  actual  notice  of  a  fact  aifecting  the  subject-matter  of  the 
contract.     See  Jones  v.  Smith,  8  Hare,  62, 

The  possession  of  a  vendor  of  an  estate  which  he  has  sold  will  not  hi  con- 
structive notice  of  any  lien  he  may  have  for  unpaid  purchase-money,  if  he  has 
signed  the  usual  receipt  on  the  conveyance  for  the  whole  purchase-money; 
for  after  that,  no  man  could  be  expected  to  inquire  whether  the  purchase- 
money  had  been  paid  :  White  v.  Wahejield,  7  Sim.  401.  *And  see 
1_  4oj  j3^-^g  ^.  Rice,  2  Drew.  1,  and  the  note  to  Maclnxth  v.  Summons, 
ante,  Vol.  1,  p.   267,  268. 

Notice  of  a  tenancy  will  not,  it  seems,  aflfect  a  purchaser  with  constructive 
notice  of  the  lessor's  title,  (per  Wigram,  V.  C,  in  Jones  v.  Smith,  1  Harej 
63 ;)  nor  will  a  purchaser  bona  fide  and  without  notice  be  affected  by  the^'mere 
circumstance  of  the  vendor  having  been  out  of  possession  many  years  :  Oxioith  v 
Phimer,  Bac.  Abr.,  tit.  "  Mortgage,"  (E.)  sect.  3 ;  S.  C,  2  Vern.  636 ;  S.  C. 
Gilb.  Eq.  Rep.  13,  and  see  the  remarks  on  this  case  in  Barnhurt  v.  Green 
shields,  9  Moore's  P.  C  C.  34,  35  ;  and  in  the  Attorney- Genercdy.  Backhouse 
17  Ves.  293,  where  the  question  arose  upon  the  validity  of  a  lease  of  charity 
lands.     Lord  Eldon,  speaking  of  the  position  of  the  assignee  of  the  lease 
said,  "  Though  the  purchaser  of  a  lease  has  never  been  considered  as  a  pur 
chaser  for  valuable  consideration  without  notice,  to  the  extent  of  not  being 
bound  to  know  from  whom  the  lessor  derived  his  title,  I  am  not  aware  of  any 
case  that  has  gone  the  length  that  he  is  to  take  notice  of  all  those  circum- 
stances under  which  the  lessor  derived  that  title." 

Where  the  purchaser  cannot  make  out  a  title  but  by  a  deed,  which  leads 
him  to  another  fact,  the  purchaser  shall  not  be  a  purchaser  without  notice  of 
that  fact,  but  shall  be  presumed  cognizant  thereof;  for  it  is  crassa  negligentia 
that  he  sought  not  after  it :  Moore  v.  Bennett,  2  Ch.  Ca.  246;  and  it  is  imma- 
terial whether  the  deed  leads  him  to  the  knowledge  of  that  fact  by  description 
of  the  parties,  in  recital,  or  otherwise.  Thus,  in  Bisco  v.  Earl  of  Banhury, 
1  Ch.  Ca.  287,  a  party  purchased  with  actual  notice  of  a  specific  mortgage. 
The  deed  creating  this  mortgage  referred  to  other  incumbrances.  The  ques- 
tion was,  whether  the  purchaser  was  to  be  afiected  with  notice  of  the  incum- 
brances which  the  deed  creating  the  mortgage  disclosed.  The  language  of 
the  Lord  Chancellor,  in  that  case,  lays  down  an  important  and  well-established 
rule,  namely,  "  that  the  purchaser  could  not  be  ignorant  of  the  mortgage,  and 
ought  to  have  seen  that,  and  that  would  have  led  him  to  the  other  deeds,  in 
which,  pursued  from  one  to  another,  the  whole  case  must  have  been  discovered 
to  him."  So,  in  (Jopjiin  v.  Fernyhoiajh,  2  Bro.  C.  C.  291,  the  mortgagee  of 
a  lease  which  recited  the  surrender  of  a  former  lease,  which  was  in  considera- 
tion of  the  surrender  of  the  former  lease  in  which  the  plaintiff's  title  appeared, 
was  held  to  have  notice  of  that  title.  This  case  decides,  in  effect,  that  a  pur- 
chaser who  has  actual  notice  of  one  instrument  afll'ecting  an  estate,  has  con- 
structive notice  of  all  other  instruments  to  which  an  examination  of  the  first 
could  have  led  him.     And  see  Nixon  v.  Rohinson,  2  J,  &  L.   14 ;  Roddy  v. 


LE     NEVE     V.     LE     NEVE.  143 

Williams,  *3  J.  &  L.  1 ;  Iloj^e  v.  Liddell,  21  Bcav.  183  j  Barber  v.   ^  ^i^-i 
Brown,  3  Jur.  N.  S.  18.  ■-        -• 

So,  in  Davies  v.  Thomas,  2  Y.  &  C.  Excb.  Ca.  23-4,  the  purchaser  had 
actual  notice  that  the  property  in  question  was  affected  by  a  marriage  settle- 
ment, and  this  settlement,  when  referred  to,  gave  notice  of  a  will.  The  Court 
decided  that  the  purchaser  had  notice  of  the  will.  This  case,  however,  has 
been  questioned,  ante.  Vol.  1,  p.  267.  In  Eyre  v.  Dolphin,  2  Ball  &  B.  290, 
the  tenant  for  life  under  a  settlement  renewed  a  lease  of  the  settled  property 
in  his  own  name,  and  for  his  own  benefit.  The  Court  held,  that  he  was  a 
trustee  of  the  renewed  lease  for  the  parties  interested  under  the  settlement. 
The  Court  also  held,  (a  point  upon  which  there  could  be  no  doubt,)  that  a  pur- 
chaser from  the  tenant  for  life,  with  actual  notice  of  the  above  facts,  could  be 
in  no  better  position  than  the  tenant  for  life  himself.  In  Malpas  v.  Acldand, 
3  Kuss.  273,  the  lessee  accepted  a  lease  of  the  premises,  and  the  lease  con- 
tained a  recital,  that  Hannam,  one  of  the  parties  to  the  lease,  was  seised  to 
him  and  his  heirs  of  the  leasehold  premises,  "  upon  trust  for  the  use  and 
behoof  of  W.  Malpas  and  Susannah  his  wife,  and  George  Colman,  (three  other 
parties  to  the  lease,)  for  such  estates  in  possession,  reversion,  or  remainder,  as 
they  become  entitled  to  after  the  decease  of  Mary  Colman,  and  that  the  trust 
had  devolved  on  Hannam."  The  Court  held,  that  the  lessee  was  affected 
with  notice  of  the  trust,  whatever  that  trust  might  be. 

In  Ferrars  v.  Cherry,  2  Vern.  383,  the  defendant  purchased  an  estate, 
with  notice  of  a  post-nuptial  settlement,  which  comprised  the  estate  in  dis- 
pute; it  was  argued  in  his  behalf,  that  there  was  no  recital  of  the  articles  for  a 
settlement  entered  into  before  the  marriage  ;  and  that,  for  aught  appeared  to 
the  defendant,  the  deed  was  fraudulent  as  against  a  purchaser ;  but  the  Court 
held,  that  he  ought  to  have  inquired  of  the  wife's  relations,  who  were  parties 
to  the  deed,  whether  it  was  voluntary  or  made  pursuant  to  an  agreement  before 
marriage,  and,  having  notice  of  the  deed,  must  purchase  at  his  peril,  and  be 
bound  by  the  effect  and  consequence  of  the  deed. 

So,  the  fact  of  a  married  woman  being  party  to  an  underlease  has  been  held 
notice  of  her  title;  Steadman  v.  Poole,  16  L.  J.,  N.  S.,  Chanc.  348. 

A  purchaser  with  notice  of  a  deed,  is  bound  by  all  its  contents.  Thus, 
notice  of  a  lease  necessarily  imparts  notice  of  the  covenants  contained  in  it : 
Taylor  v.  Stihhert,  2  Ves.  jun.  437  ;  see  also  Hall  v.  Smith,  14  Ves.  426 ; 
Fope  V.  Garland,  4  Y.  &  C  394  ;  Walter  y.  Mavnde,  1  J.  &  W.  181 ;  Spun- 
nery.  T^aM,  10  Ir.  Eq.  Rep.  386,  400;  Tanner  y.  Florence,!  Gh.'^G^i. 
259;  Lewis  v.  Bond,  18  Beav.  85;  Wilhraham  v.  Livesey,  lb.  206; 
Martin  v.  Cotter,  3  J.  &  L.  506 ;  Vignolles  v.  Bowen,  Ig  Ir.  Eq.  Rep.  194  • 
Vaughan  v.  Magill,  lb.  200 ;  Stewart  v.  3Iarquis  of  Conyngham,  1  Ir.  Ch. 
Rep.  207,  534  ;  Smith  v.  Capron,  7  Hare,  191  ;  Drysdale  v.  Mace,  2  Sm.  & 
G.  225. 

In  cases,  however,  where  specific  performance  of  a  contract  is  sought  to  be 
enforced,  the  rule  that  notice  of  a  lease  will  affect  the  purchaser  with  notice 
of  the  covenants  contained  in  it,  is  not  of  universal  application^  for  there  may 


144  NOTICE. 

have  been  such  a  degree  of  misrepresentation  in  the  particuhirs  of  sale,  as  for 
instance  when  a  lease  contains  unusual  covenants,  as  may  induce  the  Court  to 
refuse  its  assistance.  "  I  can  imagine,"  said  Lord  Chancellor  Sugden,  "  a  cove- 
nant ill  a  lease,  which  would  so  deteriorate  the  property  as  to  destroy  the  interest 
of  the  seller  in  it ;  and  the  particulars  might  state  some  of  the  covenants,  and 
omit  that.  Such  a  description  might  amount  to  fraud  in  the  sale.  I  agree 
that  if  a  purchaser  had  notice  that  the  property  was  held  under  a  lease,  he 
cannot  object  that  he  had  no  notice  of  any  particular  covenant  therein  con- 
tained, lie  must  look  closely,  and  be  active,  in  order  to  ascertain  whether 
there  is  any  such  as  would  materially  prejudice  him.  The  rule  perhaps  has 
been  carried  a  little  too  far.  It  is  a  question  of  bona  fides.  Whe7-e  tlte  pur- 
chaser has  completed  his  purchase  the  rule  is  right  ;  but  where  the  j^u r chaser 
is  only  bidding  for  something,  and  has  not  been  informed  of  the  obligations 
to  which  he  will  be  liable  in  becoming  the  purchaser,  it  is  always  a  question 
of  bona  fides  :"  Martin  v.  Cotter,  3  J.  &  L.  506.  And  see  Bessonet  v.  Robins, 
Sausse  k  Sc.  142;  Van  v.  Corpe,  3  My.  &  K.  269,  277;  Fojye  v.  Garland, 
4  Y.  &  C.  401 ;  Flight  v.  Barton,  3  My.  &  K.  282 ;  Darlington  v.  Hamilton, 
Kay,  550. 

Upon  the  same  principle  it  has  been  held  by  Sir  John  Romilly,  M.  E.,  in 
Wilbraham  v.  Livesey,  18  Beav.  206,  that  although  a  person  who  contracts 
for  a  lease  from  another,  with  the  knowledge  that  he  holds  under  a  leasehold 
title,  has  notice  of  the  ordinary  covenants  in  the  original  lease,  he  will  not  be 
held  to  have  notice  of  peculiar  and  unusual  covenants.  "  In  this  case,"  said  his 
Honor,  "though  there  is  distinct  notice  that  the  plaintiff  was  lessee,  there 
was  no  notice  except  of  ordinary  and  usual  covenants,  and  covenants  in  re- 
straint of  trade  are  not  usual  covenants,  although  in  some  localities  they  arc 
common.  The  case  might  be  varied  by  the  particular  situation  of  the  pro. 
perty,  as  if  a  house  were  situated  in  Grosvenor  Square,  T  do  not  say,  that  a 
covenant  against  converting  the  house  into  a  shop  would  be  unusual ;  but  it 
cannot  be  said  that  a  covenant  in  restraint  of  trade,  in  a  situation  wliere  trade 
r^jr  1  *^''^  usually  carried  on,  is  a  usual  and  ordinary  covenant." 

A  purchaser  is  not  imperatively  bound  to  inquire  wherever  he  has 
notice  of  an  instrument,  only  because  hy  possibility  it  may  affect  the  subject 
of  his  purchase.  Thus  in  Cothay  v.  Sydenham.,  2  Bro.  C.  C.  391,  a  pur- 
chaser had  notice  that  a  draft  of  a  deed  was  prepared,  but  not  that  a  deed 
was  executed  ;  and  it  was  held  that  he  was  not  bound  by  notice  of  the  deed, 
although  in  fact  it  was  executed.  ''  If,"  said  Lord  Tliurlow,  "  the  notice  had 
been  of  a  deed  actually  executed,  it  certainly  would  do,  but  where  the  notice 
is  not  of  a  deed,  but  only  of  an  intention  to  execute  a  deed,  it  is  otherwise  ; 
there  is  no  case  or  reasoning  which  goes  so  far  as  to  .say  that  a  purchaser  shall 
be  affected  by  notice  of  a  deed  in  contem])lation." 

INIoreover,  notice  of  a  deed,  accompanied  by  a  st;itcniciit  of  its  contents, 
which  is  erroneous,  does  not  necessarily  give  a  person  notice  of  its  real  con- 
tents. Thus  in  Jones  v.  Smith,  1  Ilarc,  43,  Smith,  befort3  advancing  money 
on  a  mortgage,  in(iuired  of  Jones  the  mortgagor  and  his  wife,  whether  any 


LE      NEVE      V.      LE      NEVE.  145 

settlement  had  been  made  upon  their  marriage;  and  was  informed  that  a 
settlement  had  been  made,  hut  of  the  loif e  s  fortune  only,  and  that  it  did  not 
include  the  husband's  estate,  which  was  proposed  as  the  security ;  and  he  after- 
wards advanced  the  mortgage  money  without  having  seen  the  settlement  or 
known  its  contents,  upon  the  security  of  a  term  prior  in  date  to  the  settlement. 
It  was  held  by  Sir  J.  Wigram,  V.  C,  that  the  iportgagee  was  not,  under  the 
circumstances,  affected  with  constructive  notice  of  the  contents  of  the  settle- 
ment, or  of  the  fact  that  the  settlement  comprised  the  husband's  estate. 
"  This  case,"  said  his  Honor,  "cannot  be  brought  within  the  scope  of  the 
authorities  which  at  once  establish  and  limit  the  cases  to  which  the  doctrine 
of  constructive  notice  is  applied.  For,  first,  it  is  incontrovertibly  clear,  that 
Smith  had  not  actual  notice  of  the  mortgaged  property  being  in  any  way 
affected  with  the  plaintiff's  interest.  The  contrary  of  this  has  not  been  sug- 
gested, and  the  point,  therefore,  requires  no  observation.  Therefore,  secondly, 
if  Smith's  estate  is  to  be  affected  by  the  plaintiff's  claim,  it  must  be  upon  the 
ground  of  his  having  purposely  avoided  inquiry,  in  order  to  avoid  discovery. 
But  is  such  a  supposition  consistent  with  a  single  fact  in  this  case  ?  His  debt 
was  not,  like  that  of  Boulnois,  in  Whithread  v.  Jordan,  (1  Y.  &  C.  Exch. 
Ca.  303,)  an  antecedent  debt,  for  which  he  might  be  glad  to  get  any 
security.  The  advance  of  his  money  was  contemporaneous  with  the  mort- 
gage which  secures  it.  His  mortgagor  was  a  needy  man,  and  the  evi- 
dence proves  that  Smith,  at  the  time  for  treating  for  the  first  morto'ao-e 
*so  considered  him.  The  letter  of  October,  1826,  which  the  plain-  r:^,--, 
tiff  has  put  in  evidence,  suggests  the  fraud  which  was  practised  upon  '- 
Smith;  and  the  evidence  of  Sarah  Jones  proves  the  suggestions  in  that 
letter  to  be  true.  Where  is  the  ground  for  questioning  the  honesty  and  bona 
fides  of  Smith,  even  if  his  caution  could  be  successfully  impeached  ?  How 
can  anything,  exceeding  want  of  caution,  be  imputed  to  the  man  who  parts 
with  his  money  upon  the  bare  faith  of  a  security,  without  any  assignable  mo- 
tive ?  The  only  knowledge  Smith  had  was,  that  there  was  a  settlement.  But 
the  contemporaneous  assertion  respecting  that  settlement  was,  that  it  related 
to  other  property  than  the  husband's.  A  simple  denial  by  Jones  and  his  wife, 
that  there  was  any  settlement  affecting  Jones's  property,  would  clearly  have 
made  Smith  safe.  How  can  it  be  argued,  that  such  denial  is  qualified  by  the 
statement  that  there  is  a  settlement  relating  to  other  property?  Nay,  more, 
is  not  the  apparent  candor  of  that  statement  calculated  rather  to  inspire  confi- 
dence than  to  excite  suspicion  and  lay  a  foundation  for  inquiry  ?  If  Smith 
was  bound  to  inquire  after  one  deed  of  which  he  was  told  nothing,  except  that 
it  did  not  relate  to  Jones's  estate,  why,  upon  the  same  principle,  should  he  not 
be  bound  to  examine  any  other  deed,  of  the  mere  existence  of  which  he  had 
notice.  If  notice  of  the  existence  of  a  settlement,  declared  not  to  affect  the 
husband's  estate,  is  to  put  a  purchaser  upon  inquiry,  only  because  it  may  by 
possibility  affect  it,  how  can  the  plaintiff  stop  short  of  the  conclusion,  that 
marriage  alone  should  be  constructive  notice  of  any  settlement  that  may  have 
been  executed  ?  And  why,  upon  the  same  principle,  should  not  every  man 
VOL.  II. — 10 


14G  NOTICE. 

■s^lio  deals  with  his  neighbor,  without  knowing  he  is  married,  he  aflfected  with 
notice  of  his  marriage,  (if  any,)  and  thence  with  notice  of  the  contents  of  the 
settlement  ?  The  basis  of  the  plaintiff's  argument  is  this  :  that  a  purchaser  is 
imperatively  bound  to  inquire,  wherever  he  has  notice  of  a  fact  which  by  bare 

possibility  may  aifect  the  subject  of  his  purchase The  affairs  of 

mankind  cannot  be  carried  on  with  ordinary  security,  if  a  doctrine  like  that  of 
constructive  notice  is  to  be  refined  upon  until  it  is  extended  to  cases  like  the 
present.  I  should  myself  incline  to  limit  the  cases  to  which  the  doctrine  is 
applied,  rather  than  to  extend  them,  were  it  not  that  the  principle  upon  which 
these  cases  are  decided,  is  sound  in  itself,  and  that  it  is  better  to  carry  out  a 
sound  principle  to  its  just  limits,  even  at  the  occasional  expense  of  individual 
hardship,  than  render  the  law  uncertain  and  fluctuating,  by  arbitrarily  refusing 
to  apply  an  acknowledged  principle  to  cases  within  its  range."  This  case,  on 
appeal,  was  afiirmed  *by  Lord  Lyndhurst,  1  Ph.  244.  See,  also,  Allen 
[*^^3  V.  Kniglit,  5  Hare,  272;  11  Jur.  527;  Bird\.  Fox,  11  Hare,  40; 
Ware  v.  Lord  Egmont,  4  De  G.  Mac.  &  Gr.  460,  473,  474  ;  Harri/man  v. 
Collins,  18  Beav.  11 ;  Re  Bright' s  Trusts,  21  Beav.  430. 

It  was  argued  in  Jones  v.  Smith,  1  Hare,  60,  that  a  purchaser  from  an  heir- 
at-law,  with  notice  of  a  will  by  the  ancestor,  under  whom  the  heir  claimed, 
would  be  affected  with  notice  of  the  contents  of  that  will,  although  he  was 
io-norant  of  such  contents,  and  even  misled  by  the  heir  at  the  time  of  his  pur- 
chase. Bat  Sir  J.  Wigram,  V.  C,  in  his  judgment  said,  that  the  question 
must  depend  upon  circumstances.  If  the  testator  had  been  long  dead,  and  the 
heir  Ion"  in  possession,  and  the  other  circumstances  of  the  case  such  as  to  leave 
the  purchaser  in  credit  for  perfect  good  faith,  ho  thought  a  court  of  equity 
would  not  interfere  against  the  legal  title,  only  because  the  purchaser  had 
notice  of  a  will,  respecting  which  he  was  misled.  If  the  death  of  the  testator 
were  recent,  other  considerations  might  arise  affecting  the  purchaser  with  the 
imputation  of  a  fraudulent  blindness.     And  see  West  v.  Rfid,  2  Hare,  257. 

The  purchaser  of  the  estate  of  an  insolvent  debtor  from  his  assignees,  at  a 
sale  by  auction,  will  not  be  affected  by  constructive  notice  of  circumstances  of 
neo-ligence  on  the  part  of  the  assignees  in  conducting  the  sale, — such  circum- 
stances being  entirely  collateral  to  any  question  of  title  :  Borell  v.  Dann,  2 

Hare,  440. 

The  purchaser  of  a  charity  lease  takes, .with  notice  of  the  facts  thereon, 
showing  its  equitable  invalidity,  {Attorney/- Gener(d  y.  Pargcter,  G  Beav.  150.) 
Secus,  where  the  facts  depend  on  circumstances  dehors  the  lease,  Attorney- 
General  V.  Backhouse,  17  Ves.  293 ;  3  llidg.  P.  C  512. 

As  to  whether  a  purchaser  is  bound  by  notice  of  articles,  the  construction 
of  which  is  dubious,  see  Vol.  1,  p.  35. 

It  is  clear,  as  is  laid  down  in  the  principal  case,  that  notice  to  an  agent, 
attorney,  or  counsel  of  a  purchaser,  is  constructive  notice  to  their  principal ; 
for  if  it  were  otherwise,  it  would  cause  great  inconvenience,  and  notice  would 
be  avoided  in  every  case  by  employing  agents  :  Sheldon  v.  6'o.r,  2  Eden,  228; 


LE     NEVE     V.      LE     NEVE.  147 

Newsfead  v.  Searles,  1  Atk.  265  ;    Tunsfall  v.  Trappes,  3  Sim.  301 ;  Bryden 
V.  Frost,  3  M.  k  C.  670;  Lenelmn  v.  McCahe,  2  Ir.  Eq.  Rep.  342. 

The  same  rule  applies  if,  as  iu  the  principal  case,  they  are  concerned  for 
both  vendor  and  purchaser  in  the  same  transaction,  (/Sheldon  v.  Cox,  2  Eden, 
224  ;  Fidler  v.  Bennett,  2  Hare,  402  ;)  even  if  they  be  themselves  the  vendors, 
{Majorihanhs  v.  Eovenden,  6  Ir.  Eq.  Rep.  238;  Dru.  11;  AtJcinsx.  Delmege, 
12  ir.  Eq.  Rep.  *1 ;  Twijcross  v.  Moore,  13  Ir.  Eq.  Rep.  250 ;  Rohin-  ^.^^ 
.w»  V.  Brigrj!^,  1  Sm.  &  Giff.  188;  Tucker  v.  Henzill,  4  Ir.  Ch.  Rep.  ^  '^ 
513;  Spencer  v.  Tophcim,  2  Jur.  N.  S.  865,)  and  notice  to  a  solicitor  in  the 
country  is  notice  to  a  person  acting  in  a  cause  by  a  town  agent,  (Norris  v.  Le 
Neve,  3  Atk.  26;)  and  notice  is  binding  even  upon  infants,  where  a  sale  is 
made  under  a  decree  of  the  Court,  (Toidmin  v.  Steere,  3  Mer.  210,)  oralthou2;h 
the  conveyance  is  made  to  a  third  person,  {Coote  v.  llammon,  5  Bro.  P.  C. 
355,  Toml.  ed.) 

However,  notice  to  counsel,  agents,  or  solicitors,  must,  in  order  to  affect 
their  employer,  have  been  given  or  imparted  to  them  in  the  same  transaction ; 
for,  if  the  law  were  otherwise,  "  it  would,"  as  observed  by  Lord  Hardwicke, 
"  make  purchasers'  and  mortgagees'  titles  depend  altogether  on  the  memory 
of  their  counsellors  and  agents,  and  oblige  them  to  apply  to  persons  of  less 
eminence  as  counsel,  as  not  being  so  likely  to  have  notice  of  former  transac- 
tions :"  Warrick  V.  Warrick,  3  Atk.  294;  Fitzgerald  y.  Falconherge,  Fitz^ibb. 
207;  Worsley  v.  Earl  of  Scarborough,  3  Atk.  392;  Steed  v.  Whitaker,  Bar- 
nard. Ch.  Rep.  220;  Hine  v.  Bodd,  2  Atk.  275;  Ashley  v.  Baillie,  2  Ves. 
368 ;  Lowther  v.  Carlton,  2  Atk.  242 ;  Fidler  v.  Bennett,  2  Hare,  394 ;  TyJee 
V.  Wehh,  6  Beav.  552;  S.  C.  14  Beav.  14;  Finch  v.  Shaw,  19  Beav.  500;  5 
H.  L.  Cas.  905. 

The  same  exception  seems  to  apply,  even  if  the  notice  is  personal;  as,  "if 
a  man  purchase  an  estate  under  a  deed,  which  happens  to  relate  also  to  other 
lands  not  comprised  in  that  purchase,  and  afterwards  purchases  the  other  lands 
to  which  an  apparent  title  is  made,  independent  of  that  deed,  the  former  notice 
of  the  deed  will  not  of  itself  affect  him  in  the  second  transaction  ;  for  he  was 
not  bound  to  carry  in  his  recollection  those  parts  of  a  deed  which  had  no  rela- 
tion to  the  particular  purchase  he  was  then  about,  nor  to  take  notice  of  more 
of  the  deed  than  affected  his  then  purchase."  Per  Lord.  Redesdale,  in  Ham- 
ilton V.  Royse,  2  S.  &  L.  327. 

Where,  however,  one  transaction  is  closely  followed  by,  and  connected  with 
another  ;  or  where  it  is  clear  that  a  previous  transaction  is  present  to  the  mind 
of  the  solicitor  when  engaged  in  another  transaction,  there  is  no  ground  for  the 
distinction  by  which  the  rule  that  notice  to  the  solicitor  isnotice  to  the  client, 
had  been  restricted  to  the  same  transaction.  Per  Lord  Langdale,  31.  R.,  in 
Hargreaves  v.  Rothwell,  1  Kee.  159;  and  see  Winter  v.  Lord  Anson,  3  Russ. 
488,  493 ;  Lenehan  v.  M'  Cahe,  2  Ir.  Eq..  Rep.  342 ;  Nixon  v.  Hamilton,  2 
D.  &  Walsh,  364  ;  Perkins  v.  Bradley,  1  Hare,  219;  Majorihanks  v.  Hoien- 
den,  6  Ir.  Eq.  Rep.  238.     This  subject  was  fully  considered  by  Sir  J.  Wigram, 


148  NOTICE. 

Y.  C,  in  the  important  *case  of  Fuller  v.  Bennett,  2  Hare,  394.  There, 
t  "^  -1  after  the  commencement  of  a  treaty  for  the  sale  of  an  estate  by  A.,  and 
the  purchase  of  it  by  B.,  A.  agreed  to  give  C.  a  mortgage  on  the  estate  as  a 
security  for  an  antecedent  debt,  and  notice  of  the  agreement  was  given  to  the 
solicitors  of  B.  The  treaty  for  the  sale  afterwards  ceased  to  be  prosecuted  for 
upwards  of  five  years,  during  part  of  which  time  the  suit  of  an  adverse  claimant 
of  the  estate  was  pending.  A.  then  died,  and  B.  purchased  the  estate  at  a 
lower  price,  from  the  heir  and  devisee  of  A.  B.  conveyed  the  estate  in  mort- 
sage  to  D.  The  same  solicitors  were  concerned  for  B.  from  the  commence- 
ment  of  the  treaty  with  A.  until  the  final  purchase  of  the  estate,  and  for  D.  in 
the  business  of  the  mortgage.  It  was  held,  under  the  circumstances  of  the 
case,  that  B.  and  D.  had,  through  their  solicitors,  constructive  notice  of  the 
agreement  with  C,  and  that  the  estate  in  their  hands  was  subject  to  the  lien 
of  C.  for  the  amount  agreed  to  be  secured  by  the  proposed  mortgage.  "The 
general  propositions,"  said  his  Honor, — ''first,  that  notice  to  the  solicitor  is 
notice  to  the  client;  secondly,  that,  where  a  purchaser  employs  the  same  soli- 
citor as  the  vendor,  he  is  aff"ected  with  notice  of  whatever  that  solicitor  had 
notice  in  his  capacity  of  solicitor  for  either  vendor  or  purchaser  in  the  trans- 
action in  which  he  is  so  employed;  and,  thirdly,  that  the  notice  to  the  solicitor, 
which  alone  will  bind  the  client,  must  be  notice  in  that  transaction  in  which 
the  client  employs  him, — have  not,  as  general  propositions,  been  disputed  at 
the  bar;  but  with  respect  to  the  last  proposition,  it  was  argued,  for  the  plain- 
tiffs, that,  where  one  out  of  two  matters  transacted  by  the  same  solicitor  follows 
so  close  upon  the  other,  that  the  earlier  transaction  cannot  have  been  out  of 
the  mind  of  the  solicitor  when  engaged  in  the  latter,  there  is  no  ground  for 
restricting  the  notice  to  the  client  to  the  second  transaction  only,  and  that  he 
will  be  afi'ected  with  notice  of  both ;  and  for  this,  reference  was  made  to  Win- 
ter V.  Lord  Anson,  (3  Buss.  488;)  Momxtford  v.  Scott,  (T.  &  11.  274;)  and 
Eargreaves  v.  Rotliwell,  (1  Kee.  154;)  to  which  I  may  add  the  case  oi  Bro- 
therton  v.  Uatt,  (2  Vern.  574.) 

"  According  to  the  plaintiff"'s  argument  upon  this  part  of  the  case,  carried 
to  its  full  extent,  the  question  is  one  of  memory  only  on  the  part  of  the  solici- 
tor, irrespective  of  the  circumstance  which  has  entered  into  all  the  cases  cited 
for  the  plaintiffs,  that  the  same  solicitor  was  employed  by  both  parties,  the 
vendor  and  the  purchaser.  According  to  the  defendant's  argument,  the  know- 
ledge which  the  solicitor  has  must  be  acquired  after  and  during  the  retainer, 
or  it  will  not  affect  the  client.  I  am  certainly  not  prepared  to  accede  to  either 
r  *'  n  proposition  to  the  full  *extcnt.  Cases  may  easily  be  suggested,  in  which 
'-  it  would  be  impossible  t'hat  a  solicitor  should  have  forgotten  a  fact  recently 

under  his  view,  with  notice  of  which,  however,  it  would  be  impossible  to  affect  his 
client,  unless  the  circumstance  of  his  being  solicitor  for  two  parties  be  introduced 
into  the  case.  And  it  is  equally  clear,  where  that  circumstance  forms  part  of 
the  case,  that  a  purchaser  may  be  afi'ected  with  notice  of  what  the  solicitor 
knew,  as  solicitor  for  the  vendor,  although  as  solicitor  for  the  vendor,  he  may 
have  acquired  his  knowledge  before  he  was  retained  by  the  purchaser.    AVhat- 


LE     NEVE     V.      LE     NEVE.  149 


ever  the  solicitor,  during  the  time  of  his  retainer,  knows  as  solicitor  for  either 
party,  may  possibly,  in  some  cases,  affect  both,  without  reference  to  the  time 
when  his  knowledge  was  first  acquired.  If,  therefore,  in  order  to  decide  the 
cause  now  before  me,  it  were  strictly  necessary  that  I  should  decide,  as  an  abstract 
question,  that  a  purchaser,  who  for  the  first  time  employs  a  solicitor,  (not 
being  also  the  solicitor  of  the  vendor,)  can  be  afiected  with  constructive  notice 
of  anything  known  to  the  solicitor,  save  that  of  which  the  solicitor  acquires 
notice  after  his  retainer,  and  during  his  employment  by  the  purchaser,  I 
should  certainly  feel  great  difficulty  in  coming  to  the  conclusion.  The  rule, 
that  notice  to  the  solicitor  will  not  bind  the  client,  unless  it  be  in  the  same 
transaction,  or  at  least  during  the  time  of  the  solicitor's  employment  in  that 
transaction,  I  have  always  understood  to  be  a  rnle  j^ositivi  juris,  adopted  by 
courts  of  justice  in  favor  of  innocent  purchasers ;  and  the  reason  and  policy  of 
the  rule  appear  to  me  to  show  that  such  is  the  case.  '  It  is  settled,'  says  Lord 
Hardwicke,  '  that  notice  to  the  agent  or  counsel,  who  was  employed  in  the 
thing  by  another  person,  or  in  another  business,  and  at  another  time,  is  no 
notice  to  his  client  who  employs  him  afterwards.  It  would  be  very  mis- 
chievous if  it  were  so  ;  for  the  man  of  most  practice  and  greatest  eminence 
would  then  be  the  most  dangerous  to  employ.'  (3  Atk.  392.)  The  expres- 
sion commonly  used  in  explaining  the  rule,  namely,  that  the  agent  may  have 
forgotten  the  former  transaction,  points  at  the  same  conclusion  ;  and  I  cannot 
think  that  Lord  Eldon,  in  the  language  he  used  extra-judicially,  in  Mount- 
ford  V.  Scott,  intended  to  shake  the  general  doctrine  which  himself,  as  well 
as  Lord  Hardwicke  and  other  judges,  had  so  often  insisted  upon.  (  Warrick  v. 
Warrick,  3  Atk.  29i  ;  Steed  v.  Whitaker,  Barnard.  Ch.  Rep.  220  ;  Hiern  v. 
Mill,  13  Ves.  120  ;  Mountford  v.  Scott,  3  Madd,  34  ;  Kennedy  v.  Green,  3 
My,  &  K.  699.)  It  is  not  necessary  so  to  understand  Lord  Eldon's  language, 
when  construed  with  reference  to  the  ""circumstances  of  the  case  before  r*c9-i 
him.  The  rule,  limited  as  above,  is,  I  presume  to  say,  best  adapted 
to,  and  fully  sufficient  for  the  purposes  of  justice. 

"  It  appears  to  me,  however,  that  it  may  not  be  necessary  that  I  should  give 
an  opinion  upon  the  abstract  question.  The  cases  of  Brotherton  v.  JIatt 
Winter  v.  Lord  Anson,  3Iountford  v.  Scott,  and  Hargreaves  v.  Rothivell,  do 
not  appear  to  me  necessarily  to  impeach  the  rule.  The  circumstances  of 
those  cases  were,  for  the  present  purpose,  in  substance  the  same.  The  mort- 
gagors had  at  difi"erent  times  employed  the  same  solicitor  in  effecting  difi"erent 
incumbrances  upon  the  same  estate  ;  and  the  incumbrancers  with  whom  the 
contest  arose  had  employed  the  mortgagor's  solicitor  in  the  several  transactions 
in  which  they  were  respectively  concerned.  The  Court  held  the  puisne  in- 
cumbrancer affected  with  constructive  notice  of  the  prior  incumbrances ;  for, 
having  in  that  case  employed  the  mortgagor's  solicitor,  he  would  necessarily 
be  affected  with  notice  of  the  prior  transaction,  unless  it  should  be  held  that 
the  common  solicitor  (in  his  character  of  solicitor  to  the  mortgagor)  was  not 
to  be  considered  as  recollecting  the  old  transactions  when  engaged  in  new.  If 
that  were  admitted, — if  the  notice  which  the  solicitor  of  the  mortgagor  had  in 


150  NOTICE. 

the  old  transaction  were  not  continued  in  the  new  transaction, — I  do  not 
know  Avhat  should  prevent  the  solicitor  of  the  mortgagor  from  himself  becoming 
an  incumbrancer  upon  the  estate,  and  insisting  upon  his  incumbrance  against 
the  mortgagees  whose  mortgages  he  had  himself  on  former  occasions  prepared. 
This  was,  in  fact,  unsuccessfully  attempted  in  the  late  case  of  Perkins  v. 
Bradley,  (1  Hare,  219.)  In  the  absence  of  special  circumstances  to  affect 
the  conclusion,  and  in  the  absence,  certainly,  of  any  rule  of  law  affecting  the 
case,  it  might  be  right  to  hold  that  the  solicitor  for  the  mortgagor  had  (like 
the  mortgagor  himself)  notice  of  the  prior  transaction,  in  that  very  transaction 
in  which  he  was  employed  by  the  mortgagee.  It  was  one  continuous  dealing 
with  the  same  title.  If,  as  solicitor  for  the  mortgagor,  he  had  such  notice  in 
the  new  transaction,  he  had  it  in  that  new  transaction  as  solicitor  for  both. 
The  reasoning  is  technical ;  and  in  a  case  like  that  I  am  supposing,  the  techni- 
cality, as  well  as  the  common  sense  of  the  case  appears  to  me  to  be  in  favor  of 
the  decisions  I  am  now  considering.  But  however  that  may  be,  the  decisions 
must  govern  the  present  case,  whether  my  attempt  to  reconcile  them  with  the 
positive  rule  I  have  referred  to  be  right  or  not."  And  see  Wilde  v.  Gibson, 
1  II.  L.  Ca.  605 ;  Gerrard  v.  O'Reilbj,  3  D.  &  War.  414. 
r*-cn  *Where  a  solicitor,  employed  both  by  the  mortgagor  and  mort- 
■-  ^  gagee,  was  himself  the  author  of  a  fraud,  Lord  Brougham,  differing  in 
this  respect  from  the  opinion  of  Sir  J.  Leach,  M.  K.,  held,  that  although  the 
solicitor  had  actual  and  full  notice  of  his  own  fraud,  the  mortgagee  was  not 
cognizant  in  law,  and,  constructively,  merely  because  his  solicitor,  himself 
the  contriver,  the  actor,  and  gainer  of  the  transaction  knew  it  well ;  but  his 
Lordship  affirmed  the  judgment  of  the  Master  of  the  Rolls  on  another  ground, 
viz.,  that  it  was  apparent  on  the  face  of  the  deed  that  a  fraud  had  been  com- 
mitted, which  ought  to  have  led  to  further  inquiries,  and  the  mortgagee  was, 
therefore,  constructively  affected  in  the  same  manner  as  if  he  had  employed 
another  solicitor :  Kennedy  v.  Green,  3  My.  &  K.  699.  And  see  Jones  v. 
Smith,  1  Ph.  256 ;  Neesom  v.  Clarkson,  2  Hare,  163  ;  Frail  v.  Ellis,  16 
Beav.  350 ;  Hiorns  v.  Eoltom,  16  Beav.  259  ;  Greenslade  v.  Dare,  20  Beav. 
284,  291 ;  Sjjencer  v.  Topham,  2  Jur.  N.  S.  865  ;  Rohinsony.  Briggs,  1  Sm.  & 
Giff.  188  ;  Heioitt  v.  Loosemore,  9  Hare,  449,  455. 

A  public  Act  of  Parliament  is  of  itself  full  notice,  but  not  a  private  Act, 
{Earl  of  Pomfret  v.  Lord  Windsor,  2  Ves.  480  ;)  nor,  it  seems,  is  a  private 
Act  made  a  public  one,  {Attorney- Generals.  Marrett,  10  Ir.  Eq.  Rep.  167  ; 
3  B.  &  P.  578.) 

Nor  will  an  act,  {Collett  v.  De  Gols,  Ca.  t.  Talb.  65;  Ex  parte  Knott,  11 
Ves.  609  ;  but  see  1  S.  &  L.  152 ;  Ex  parte  Herbert,  13  Ves.  183,)  or  com- 
mission, (Hitchcock  v.  Sedgicick,  2  Vern.  156,  reversed  Dom.  Prec,  House 
of  Lords  Journ.  vol.  14,  p.  601 ;  3  My.  &  K.  591,)  of  bankruptcy  of  itself 
amount  to  notice. 

Nor  will  a  judgment  be  notice,  {Churchil  \.  Grove,  1  Ch.  Ca.  35;  Frcwn. 
Ch.  Ca.  176;  Laiie  v.  Jackson,  26  Beav.  535  ;  1  &  2  Vict.  c.  110,  s.  13;) 
unless  a  search  have  been  made  for  judgments,  in  which  case  notice  will  be 


LE     NEVE     V.     LE     NEVE.  151 

presumed,  {Procter  v.  Cooper,  12  Drew,  1 ;  19  Jur.  149  ;)  but  it  seems  that 
a  title  depending  on  the  fact  of  the  vendor  having  been  a  purchaser  without 
notice  of  a  registered  judgment,  cannot  be  forced  upon  a  purchaser,  {Freer  v. 
Hesse,  4  De  G.  Mac.  &  Gr.  495 ;)  and  although,  under  the  old  law,  a  purchaser 
would  be  bound  by  a  judgment,  even  though  not  docketted,  if  he  had  notice 
of  it,  {Davis  v.  Strathmore,  16  Ves.  419,)  he  will  not,  under  the  new  law,  even 
with  notice,  be  affected  by  a  judgment,  unless  duly  registered  :  3  &  4  Vict.  c. 
82 ;  Lee  v.  Green,  6  De  G.  Mac.  &  G.  155,  168. 

Although  a  decree  after  the  determination  of  the  suit  is  not  constructive 
notice  to  persons  not  parties  to  it,  (  Worsley  v.  Earl  of  Scarborough,  o  Atk. 
392,)  in  the  case  of  a  lis  pendens,  if  there  has  been  a  close  and  uninterrupted 
prosecution  of  the  suit,  a  purchaser  pendente  lite,  for  valuable  *consi-  j-  >!;-_,-. 
deration  and  without  notice,  was,  prior  to  2  Viet.  c.  11,  bound  by  the 
decree,  although  the  lis  pendens  had  not  been  registered,  {Preston  v.  Tuhhin, 

1  Vern.  286  ;  Sorrell  v.  Carpenter,  2  P.  Wms.  482  ;  Walker  v.  Smallwood, 
Amb.  676  ;  Garth  v.  Ward,  2  Atk.  175 ;)  and  also  by  an  interlocutory  decree, 
or  a  decree  to  account,  ( Worsley  v.  Earl  of  Scarhorough,  3  Atk.  392  ; 
Higgins  v.  Shaw,  2  D.  &  War.  356;)  but  some  specific  claim  must  have  been 
made  in  the  suit  to  the  particular  subject  sought  to  be  affected  by  lis  pendens. 
{Reed  V.  Freer,  13  L.  J.  (Chauc.)  417  ;  Holt  v.  Dewell,  4  Hare,  446  ;  and 
see  and  consider  Shalcross  v.  Dixon,  7  L.  J.  N.  S.  (Ch.)  180;  Jennings  v. 
Bond,  2  J.  &  L.  720;  Tennison  v.  Siveeney,  Ir.  Eq.  Rep.  511.)  By  2  &  3 
Vict.  c.  11,  s.  7,  lis  pendens  will  not  affect  a  purchaser  without  express  notice, 
unless  properly  registered. 

A  lis  pendens  will  not  affect  a  person  with  notice  of  an  equitable  claim 
which  one  co-defendant  may  have  against  another  :  Bellamy  v.  Sabine,  3 
Jur.  N.  S.  943. 

By  3  &  4  Vict.  c.  82,  notice  of  an  unregistered  decree,  as  well  as  of  an  un- 
registered judgment,  will  not,  as  against  purchasers,  mortgagees,  or  creditors, 
give  such  decree  or  judgment  any  effect  under  1  &  2  Vict.  c.  110. 

And  judgments  and  decrees  not  duly  re-registered  within  five  years  will  be 
void  as  against  subsequent  purchasers,  mortgagees,  and  creditors,  though  they 
will  not  lose  their  priority  over  previous  purchasers,  mortgagees,  and  credi- 
tors. (2  &  3  Vict.  c.  11,  s.  4 ;  Beavan  v.  The  Earl  of  Oxford,  6  De  G. 
Mac.  &  G.  492;  Hiclcson  v.  Collis,  IJ.  &  L.  94,  113;  Sugd.  V.  &  P.  426, 
13th  ed.  ;  sed  vide  Shaw  v.  Neale,  20  Beav.  157.)  And  re-registration  is 
equally  necessary  as  to  judgments  removed  from  the  inferior  courts,  (18  &  19 
Vict.  c.  15,  s.  7,)  and  as  to  judgments  in  the  counties  palatine,  (lb.  s.  3.) 

Court  rolls  of  a  manor  do  not  give  constructive  notice  :  Bugden  v.  Bignold, 

2  Y.  &  C.  C.  C.  377. 

The  registration  of  deeds,  as  before  observed,  will  not  of  ifself  be  notice  to 
a  purchaser  taking  the  legal  estate  :  Bushell  v.  Bushell,  1  S.  &  L.  103  ;  Ford  v. 
White,  16  Beav.  120 ;  but  if  a  purchaser  search  the  register  he  will  be  pre- 
sumed to  have  notice,  unless  the  presumption  be  rebutted  by  his  showing  that 


152 


NOTICE. 


the  search  was  made  for  a  period  only  in  wliicli  the  registered  deeds  are  not 
included  :  Hodgson  v.  Dean,  2  S.  k  S.  221. 

As  to  the  time  of  notice  oeing  liad.l — Notice  before  actual  payment  of  the 
purchase-money,  even  although  it  may  have  been  secured  and  a  conveyance 
actually  executed,  will  be  binding  in  the  same  manner  as  notice  had  before 
the  contract ;  for,  although  the  purchaser  has  no  remedy  at  law  against  the 
r*"-]  payment  of  the  money  *for  which  he  gave  his  security,  yet  he  would 
*-  ^'  be  entitled  to  relief  in  equity,  on  bringing  his  bill  and  showing  that 
though  he  has  given  a  security  for  his  purchase-money,  yet  he  had  since  had 
notice  of  an  incumbrance ;  under  which  circumstances  the  Court  would  stop  pay- 
ment of  the  money  due  on  the  security  :  TourviUe  v.  Naisli,  3  P.  Wms.  307  ; 
Story  V.  Lord  Windsor,  2  Atk.  630;  3Iore  v.  Mayliow,  1  Ch.  Ca.  34; 
Jones  V.  Stanley,  2  Eq.  Ca.  Ab.  685,  pi.  9  ;  so,  where  notice  is  had  before  the 
execution  of  the  conveyance,  it  is  equally  binding,  although  the  purchase- 
money  may  have  been  paid  before  notice  :    Wigg  v.  Wigg,  1  Atk.  382,  384. 

As  to  what  is  sufficient  proof  of  notice,  see  Sugd.  V.  &  P.  638,  13th  edit. 


•  Notice  may  be  either  actual  or  con- 
structive.    It  is  actual  when  the  pur- 
chaser either  knows  of  the  existence 
of  the  adverse  claim  or  title,  or  is  con- 
scious of  having  the  means  of  know- 
ledge and  does  not  use  them,  whether 
his  knowledge  is  the  result  of  a  direct 
communication,  or  is   gathered  from 
facts  and  circumstances  ;    The  Mayor 
V.   Williams,  6  Maryland,  235.     Con- 
structive notice  is  a  legal  presumption 
of  notice,  of  so  high  a  nature  as  to  be 
conclusive,  unless  rebutted ;  Rogers  v. 
Jones,  8  New  Hampshire,  264;  and 
is  in  most  cases  insusceptible  of  rebut- 
tal, even  by  evidence  of  the  absence 
of  actual  knowledge  or  notice;  Plumh 
V.  Fluitt,  2  Anstruther,  432;  Griffith 
V.  Griffith,  1  Hoifman,  153.     Thus,  if 
a  deed  from  the  vendor  to  a  stranger, 
were  proved  to  have  been  in  the  hands 
of  the  purchaser  prior  to  the  purchase, 
it  would  authorize  an  inference  that 
he  had  made  himself  ac([uaintcd  with 
its  contents,  and  thus  raise  a  presump- 
tion of  actual  notice.      The  presump- 


tion thus  arising  might  be  rebutted 
by  showing  that  the  instrument  was 
in  a  foreign  language,  or  that  the  pur- 
chaser was  unable  to  read,  and  had 
not  consulted  any  one  who  could,  or 
by  any  other  evidence  of  a  nature  to 
disprove  the  inference  on  which  it  was 
founded ;  Farnsworth  v.  Childs,  4 
Mass.  637.  But  where  a  deed  is  au 
essential  link  in  the  chain  of  title 
purchased,  a  presumption  of  notice 
of  its  contents  is  raised  by  legal  con- 
struction, which  cannot  be  overthrown 
by  the  strongest  evidence  that  the 
deed  never  was  in  the  possession  of 
the  purchaser,  and  that  he  had  no  ac- 
tual knowledge  or  notice  of  its  exist- 
ence. 

A  direct  statement  to  a  purchaser 
of  the  existence  and  nature  of  an  ad- 
verse claim  or  title,  made  by  him  who 
holds  it,  or  by  any  one  acting  on  his 
behalf,  will  of  course  take  effect  as 
actual  notice ;  Ingram  v.  Phillips,  3 
Strobhart,  565 ;  Barthtt  v.  Glascock, 
4  Missouri,  62  ;  Mcnse  v.  M'Lean,  13 


LE     NEVE     V.      LE     NEVE. 


153 


Mis.  298  ;  Nelson  v.  Sims,  1  Cusli- 
man,  383;  Barnes  v.  M}  Clinton,  3 
Penna.  67.  And  it  might  seem  that 
when  such  a  statement  is  sufficiently 
clear  and  authoritative  to  give  the  re- 
quisite information,  its  effect  should 
be  the  same,  whether  it  be  made  by 
or  on  behalf  of  the  party  holding  the 
adverse  title,  or  by  a  mere  stranger 
acting  wholly  without  interest  or 
authority ;  Lewis  v.  Bradford,  10 
Watts,  G7.  But  from  whatever  quar- 
ter such  a  communication  may  come, 
it  must  be  sufficiently  definite  to  put 
the  purchaser  on  his  guard  ;  Epley 
V.  ^Yetherolo,  7  Watts,  163,  167;  and 
enable  him  to  ascertain  whether  it  is 
authentic ;  Curtis  v.  Blair,  4  Cush- 
man,  312 ;  Butler  v.  Stevens,  26  Maine, 
484  ;  Foxist  v.  Moorman,  2  Carter,  17; 
Bogfjs  V.  Yarner,  6  W.  &  S.  469; 
Flagg  v.  Mann,  2  Sumner,  486, 
552.  If  mere  reports  or  allegations, 
resting  on  no  ascertained  foundation, 
and  incapable  of  being  traced  to 
any  definite  source,  were  allowed  to 
have  the  effect  of  notice  when  true, 
the  vendor  would  be  obliged  to  sell 
the  estate  subject  to  the  risk  of  their 
truth,  or  falsity  when  false.  Notice 
must  therefore  be  certain  in  the  sense 
of  the  legal  rule,  which  regards  that 
as  certain  which  is  capable  of  being 
reduced  to  certainty ;  and  the  ques- 
tion, whether  a  statement  made  at  the 
time  of  a  purchase  is  to  be  considered 
as  notice,  seems  to  depend  on  whether  it 
is  sufficiently  clear  and  authentic  to  put 
the  purchaser  on  inquiry,  and  to  ena- 
ble him  to  conduct  that  inquiry  to  a  suc- 
cessful termination  ;  3Iassie  v.  Green- 
how,  2  Patton  &  Heath,  255,  276; 
Kerns  v.  Swope,  2  Watts,  78 ;  Jaques 
v.  Weeks,  7  Id.  266  ;  Eplci/  v.  Wethe- 
row,  lb.  163, 167  ;  Bellas  v.  M'  Carfj/, 


10  Id.  19  ;  iMiller  v.  Cresson,  5  W.  & 
S.  284;  Knoujfr.  Thompson,  4  Har- 
ris, 357,  364  ;  Flagg  v.  Mann,  2  Sum- 
ner, 486,  552 ;  Leicis  v.  3Iadisons,  1 
Munford,  303.  Hence,  a  vendor  who 
is  warned  of  the  existence  of  a  prior 
conveyance,  or  of  an  outstanding  right 
of  any  description,  can  hardly  be 
bound  to  do  more  than  apply  to  the 
person  in  whom  the  right  is  said  to  be 
vested,  and  will  not  be  responsible  for 
not  pushing  his  inquiries  further,  un- 
less the  answer  which  he  receives  cor- 
roborates the  prior  statement,  or  re- 
veals the  existence  of  other  means  of 
information ;  Massie  v.  Greenhoiv ; 
Holmes  Y.  Stout,  2  Stockton,  Ch.  419. 
Thus  it  has  been  decided,  that  a  state- 
ment that  the  title  of  the  vendor  is  af- 
fected by  equities  in  favor  of  third  per- 
sons, (  Wildgoose  v.  Wai/land,  Goulds- 
borough,147,pl.  67;  Tolland  v.  Stand- 
bridge,  3  Vesey,  486  ;  Butler  v.  Ste- 
vens, 26  Maine,  484 ;  Peebles  v.  Read- 
ing, 8  S.  &  R.  584 ;  Gill  v.  M'Attee, 
2  Maryland  Chancery,  255,  269; 
Wright  v.  Ward,  11  Harris,  120,)  or 
that  the  land  for  which  the  purchaser 
is  in  treaty,  has  been  previously  sold 
to,  or  settled  upon  some  one  else, 
(^JacJcson  v.  Given,  8  Johnson,  157 ; 
Jaques  v.  Weeks,  7  Watts,  261 ;  Lewis 
V.  Bradford,  10  Id.  67,  274 ;  3Iiller 
V.  Cresson,  5  W  &  S.  284 ;  Wilson  v. 
M'Cullough,  11  Harris,  440,)  is  not 
sufficient  to  impair  the  legal  right  of 
a  purchaser,  or  deprive  him  of  equi- 
table protection ;  Williamson  y. Brown, 
15  New  York,  354,  364 ;  3Iassie  v. 
Greenhoio,  2  Patton  &  Heath,  255. 

The  view  thus  taken  is  fully  sus- 
tained by  the  recent  cases  of  Mas- 
sie V.  Greenliow,  and  Williamson 
V.  Broivn,  which  decide  that  the 
presumption  of  notice,  which   arises 


154 


NOTICE. 


when  a  purchaser  is  put  ou  inquiry, 
may  be  rebutted,  by  proof  that  the 
facts  commuuicated  to  him,  or  within 
his  reach,  were  insufficient  to  lead  to 
the  truth,  or  enable  him  to  discover 
it  by  his  own  exertions ;  and  the  lan- 
guage held  in  Williamson  v.  Broivn, 
implies  that  the  steps  taken  to  prose- 
cute the  inquiry,  may  be  given  in  evi- 
dence, to  show  that  everything  was 
done,  which  good  faith  required,  and 
that  further  effort  would  have  been 
unsuccessful  and  fruitless.  It  would, 
indeed,  seem  sufficiently  obvious,  that 
all  that  can  reasonably  be  asked 
from  those  who  buy  on  the  faith  of  a 
legal  or  recorded  title,  is  a  diligent 
effort  to  learn  whether  the  acquisition 
will  prejudice  the  equitable  or  unre- 
corded rights  of  others,  and  that  when 
such  effort  has  been  made  in  vain, 
nothing  more  should  be  exacted.  It 
should,  however,  be  remembered,  that 
a  purchaser  will  have  notice  whenever 
he  has  the  means  of  knowledge,  al- 
though he  may  choose  not  to  know,  or 
in  other  words,  whenever  it  may  fair- 
ly be  presumed,  that  he  either  knew, 
or  remained  wilfully  ignorant ;  Graff 
V.  Castleman,  5  Randolph,  195;  Pen- 
dleton V.  Fai/,  2  Paige,  202 ;  Pitney 
V.  Leonard,  1  Id.  461 ;  Doyle  v.  Teas, 
4  Scammon,  202  ;  Cook  v.  Gaiza.,  13 
Texas,  401 ;  Tillingliast  v.  Champlin, 
4  Rhode  Island,  173,  215;  ante,  vol.  1, 
p.  251 ;  The  Hoioard  Ins.  Co.  v.  liai- 
se?/, 4  Sandford,  565 ;  4  Selden,  271 ; 
Price  V.  3f  Donald,  1  Maryland,  414  ; 
Iloxiev.  Carr,  1  Sumner,  1!)3;  Whit- 
hread  v.  Jordan,  1  Young  k  Collier, 
303 ;  the  rule  being,  that  a  party  who 
has  been  put  in  possession  of  infor- 
mation calculated  to  induce  the  belief 
that  third  persons  arc  interested  in 
the  property  which  he  is  about  to  buy, 


will  be  chargeable  with  a  knowledge 
of  every  fact,  which  the  inquiry  thus 
suggested  would  have  disclosed,  if  pro- 
secuted with  due  diligence.  Hence, 
communications  which  fall  short  of 
the  whole  truth,  and  even  suppress 
or  misstate  part  of  it,  may  operate  as 
notice,  by  putting  the  purchaser  on 
his  guard,  and  furnishing  the  means  of 
further  and  successful  investigation; 
Price  V.  M Donald.  Notice  will,  more- 
over, always  be  inferred,  when  the  cir- 
cumstances are  such  as  to  show  collu- 
sion ;  and,  a  purchaser  who  buys  a 
mortfrage  for  much  less  than  its  nomi- 
nal  value,  and  pays  for  it  in  goods  es- 
timated at  forty  per  cent,  more  than 
they  are  worth,  with  a  full  knowledge 
that  the  vendor  means  to  send  them 
to  auction  at  once,  as  a  means  of  rais- 
ing money,  will  be  presumed  to  have 
been  aware  that  the  title  of  the  latter 
was  defective,  and  cannot  claim  the 
privileges  incident  to  good  faith  and 
fair  dealing;  Peahody  v.  Fenton,  3 
Barbour,  Chancery,  457. 

The  doctrine  is  strikingly  illustrat- 
ed by  the  decision  of  the  Supreme 
Court  of  Pennsylvania,  in  the  case  of 
Kerns  v.  Swope.  In  that  case,  the 
plaintiff  had  purchased  a  tract  of  laud 
in  Bedford  county,  together  with  an- 
other tract  in  Huntingdon  county, 
from  a  party  to  whom  both  tracts  had 
been  conveyed  by  tlie  same  deed, 
which  was  only  recorded  in  Hunting- 
don county,  and  the  question  was, 
whether  this  record,  which  could  not 
operate  as  constructive  notice  as  to 
t)ie  lands  in  Bedford  county,  would 
operate  as  actual  notice  if  examined 
and  read  by  the  purchaser  at  the  time 
of  the  purchase.  It  was,  however, 
decided,  that  with  rcgau'd  to  the  lands 
situated  out  of  the  county  in  which 


LE     NEVE     V.     LE     NEVE. 


155 


the  deed  was  recorded,  the  record 
must  be  considered  as  a  mere  unau- 
thorized copy,  without  any  evidence 
or  mark  of  authenticity,  and  as  such 
could  not  take  effect  even  as  actual 
notice. 

"  It  has  been  argued,"  said  Gibson, 
C.  J.,  who  delivered  the  opinion  of 
the  court,  "that  a  presumption  may 
arise  of  actual  inspection  of  the  defec- 
tive registry,  which  is  said  to  amount 
to  actual  notice  of  the  contents  of  the 
original  paper.  The  ground  of  the 
supposed  presumption  is  the  fact  that 
the  plaintiff  purchased,  along  with  the 
tracts  in  dispute,  certain  other  tracts 
included  in  the  conveyance  to  the 
bank,  which  are  situate  in  Huntingdon 
county,  where  the  conveyance,  and 
what  purports  to  be  the  memorandum 
containing  a  recital  of  the  material 
facts,  were  registered  together;  and  as 
the  original  was  lost,  it  is  supposed  to 
be  a  reasonable  presumption  that  the 
plaintiff  purchased  on  the  faith  of  the 
registry  in  that  county,  and  actually 
inspected  it.  Nothing  is  more  rea- 
sonable. But  not  to  insist  on  the 
obvious  answer  to  this,  that  the  jury 
were  not  left  to  draw  the  conclusion 
of  fact,  we  will  consider  the  case  as  if 
the  registry  had  been  actually  ex- 
amined. That  it  was  defective,  is  not 
open  to  a  doubt.  The  memorandum 
of  the  recital,  thought  to  be  material, 
purports,  according  to  the  registry,  to 
have  been  indorsed  on  the  convey- 
ance, but  underneath  the  certificate 
of  the  acknowledgment,  which  con- 
tains neither  reference  nor  allusion  to 
it;  and  the  original  was  therefore  des- 
titute of  the  evidence  of  authentica- 
tion required  by  the  law  to  entitle  it 
to  be  registered.  The  registration, 
therefore,  being  without  the  authority 


of  the  law,  was  the  unofiicial  act  of 
the  officer,  which  could  give  the  cojjy 
no  greater  validity  than  the  original 
deprived  of  legal  evidence  of  execu- 
tion ;  nor  even  so  much,  for  an  ori- 
ginal deed  exhibited  to  a  purchaser 
would  affect  him  though  it  were  un- 
accompanied with  the  evidence  of  its 
execution.  But  here  the  registry  was 
no  better  than  a  copy  made  by  a  pri- 
vate person  in  a  memorandum  book  ; 
from  which  a  purchaser  would  be  un- 
able to  determine  whether  there  were, 
in  fact,  an  indorsement  on  the  deed, 
or  whether  it  had  been  truly  copied — 
especially  when  neither  the  copy,  nor 
an  exemplification  of  it,  would  be  legal 
evidence  of  the  fact  in  a  court  of 
justice.  Unquestionably  a  purchaser 
would  not  be  affected  by  having  seen 
the  copy  of  a  conveyance  among  the 
papers  of  another,  or  an  abstract  of  it 
in  a  private  book.  The  whole  effect 
of  a  registry,  whether  as  evidence  of 
the  original,  or  as  raising  a  legal  pre- 
sumption that  the  copy  thus  made 
equivalent  to  the  original,  has  been 
actually  inspected  by  the  party  to  be 
affected,  is  derived  from  the  positive 
provisions  of  the  law;  and  when  un- 
sustained  by  these,  a  registry  can  have 
no  operation  whatever.  Stripped  of 
artificial  effect,  it  is  but  the  written 
declaration  of  the  person  who  was  the 
officer  at  the  time,  that  he  had  seen  a 
paper  in  the  words  of  the  copy  which 
purported  to  be  an  original.  But  to 
say  nothing  in  this  place  of  the  in- 
competency of  such  a  declaration  as 
evidence  of  the  fact,  on  what  principle 
would  a  purchaser  be  bound  to  attend 
to  the  hearsay  information  of  one  who 
is  not  qualified  to  give  it?  Since  the 
decision  in  CornicaUis's  case,  Toth. 
254,    and     Wikhjoose    v.     Wa^hiitd, 


156 


NOTICE. 


Gouklsb.  147,  pi.  G7,  it  lias  been  con- 
sidered a  settled   principle,  that  the 
vague  reports  of   strangers,  or  infor- 
mation given  by  a  person  not  interested 
in  the   property  are  insufficient.     It 
has    been    held   even  that  a   general 
claim  may  be  disregarded.    There  cer- 
tainly are  cases  which  seem  to  cast  a 
doubt  on  the  principle.     But    as   is 
properly  remarked  by  Mr.  Sugdeu  in 
his  Treatise  on  Vendors,  the  point  of 
notice  to  which  the  remark  of  Chief 
Baron  Hale  was  directed,  in  Fry  v. 
Porter,  1  Mod.  300,  did  not  relate  to 
a  purchaser.     In  Butcher  v.  Stapcly, 
2  Vern.  364,  the  purchaser  was  affect- 
ed with   notice,  of   which,  it  is  said, 
there  was   no   other   direct  evidence 
than  what  might  have  been  gleaned 
from  the  conversation  of  some  neigh- 
bors, who  said  they  had  heard  that 
the  vendor  had  sold  the  estate  to  the 
plaintiff.    It  is  obvious  that  to  decree 
on  parol  evidence  of  loose  conversa- 
tions in  the   presence  of  the   party, 
which  may  not  have  been  heard  or 
understood  by  him,  would  be  attended 
with  extreme  danger  of  injustice;  and 
notwithstanding  this  decision,  the  rule 
seems    to   be   established   as  I    have 
stated  it,  having  been  recognized  by 
this  court  in  Peebles  v.  Peading,  8 
Serg.  &  Ilawle,  480,  and  Pijyple  v. 
Ripple,  1  Ilawle,  386." 

Although  the  soundness  of  the 
general  principles  laid  down  in  this 
decision,  cannot  be  questioned,  some 
doubt  may  be  entertained  as  to  their 
application.  The  evidence  was  not 
merely  sufficient,  but  legally  conclu- 
sive, that  the  record  was  a  true  copy 
of  the  deed,  as  to  the  lands  in  Hun- 
tingdon county,  although  not  as  to 
those  in  Bedford  county,  and  if  it 
had   been  actually  examined   by  the 


purchaser,  which  could    not  be  pre- 
sumed, and  was  not  proved,  the  case 
would  have  stood  on  the  same  footing 
as  if  he  had  seen  a  deed  duly  executed 
and  proved  of  the  lands  in  the  former 
county,  and  containing  a  recital  of  a 
contemporaneous  conveyance  of  those 
in  the  latter.     Such  a  recital  would 
not   have   been    constructive  notice ; 
but  would  have  been  sufficient  to  in- 
duce   and    direct    inquiry,  and    thus 
operate  as  actual  notice.     And  even 
if  the  record  was  to  be  regarded  as  a 
mere    unautheuticated  copy;    still,  a 
copy  of  a  deed,  purporting  to  pass  the 
land   for    which   a   purchaser   is   in 
treaty,  found  among  the  papers  of  a 
party  claiming   an   interest  in  other 
land  under  the  same  deed,  would  seem 
to  make  it  the  duty  of  the  purchaser, 
to  pause  in  completing  his  purchase, 
until  he  has  made  inquiry  of  the  par- 
ties   to    the    instrument.      Thus,    in 
Hastings^  v.  Cutler,  4  Foster,  481,  ac- 
tual notice  of  the  record  of  a  deed  was 
held  to  be  notice  of  the  deed  itself, 
although  not  recorded  in  the  manner 
prescribed  by  law.  In  Kerns  v.  Sicojie, 
however,  there  was  nothing  to  prove 
that  the  copy  had  been  seen  by  the 
purchaser,    except   the    presumption 
that  a  purchaser  examines  the  regis- 
try, which  as  a  presumption  of  fact, 
has  no  weight  whatever,  and  as  a  pre- 
sumption of  law,  is   applicable  only 
where  the  deed  is  registered  in  the 
same  county  with  the  land. 

Even  when  circumstances  are 
brought  directly  home  to  the  know- 
ledge of  the  purchaser,  which  would 
have  been  sufficient  in  themselves,  to 
have  put  liiin  on  inquiry,  and  tlius 
amount  to  notice ;  he  will  be  entitled 
to  rebut  the  presumption  of  notice, 
which  would  otherwise  arise,  by  show- 


LE     NEVE     V.      LE     NEVE. 


157 


ing  the  existence  of  other  and  attend- 
ant circumstances,  of  a  nature  to  allay 
his  suspicions,  and  lead  him  to  sup- 
pose that  inquiry  was  not  necessary ; 
Curtis  V.  Blair,  4  Cushman,  310. 
Thus,  where  a  vendor  exhibited  a 
prior  deed  of  the  estate  to  a  purchaser, 
but  told  him  at  the  same  time,  that  it 
had  never  been  delivered ;  it  was  held, 
that  as  this  statement  was  fortified  by 
the  possession  of  the  instrument,  it 
was  suflScient  to  render  a  failure  to  in- 
quire of  the  grantee  excusable,  and  to 
exonerate  the  purchaser  from  the  pre- 
sumption of  notice,  although  the  deed 
had  in  fact,  been  delivered  and  handed 
back  to  the  vendor,  on  the  faith  of  a 
promise  to  have  it  recorded ;  Rogers 
v.  Jones,  8  New  Hampshire,  26-1. 

The  general  principle,  that  notice 
must  be  certain,  applies  emphatically 
to  all  statements  which  do  not  pro- 
ceed directly  from  parties  in  interest, 
or  their  agents,  even  when  made  by 
third  persons,  in  reply  to  the  inqui- 
ries of  the  purchaser,  or  spontaneous- 
ly, for  the  purpose  of  putting  him  on 
his  guard,  and  preventing  him  from 
completing  the  purchase.  It  is  ac- 
cordingly well  settled,  that  vague  and 
general  assertions,  resting  on  mere 
hearsay,  and  made  by  strangers  in  au- 
thority and  interest,  may  be  wholly 
disregarded,  and  will  not  bind  the 
conscience  of  the  purchaser,  or  affect 
his  legal  or  equitable  rights,  even 
when  true  in  point  of  fact  ]  Butler  v. 
Stevens,  26  Maine,  484;  T?ie  City 
Council  V.  Page,  1  Spear's  Eq.  159, 
183.  And  this  rule  has  been  stated  so 
positively,  and  in  such  unqualified 
terms,  under  the  sanction  of  names  of 
great  authority,  as  to  lead  to  the  in- 
ference, that  notice  cannot  be  "bind- 
ing, unless  it  proceed  from  a  person 


interested  in  the  property,  and  in  the 
course  of  a  treaty  for  its  purchase;" 
Sugden  on  Vendors,  vol.  3,  451,  452, 
pi.  2  ;  Kerns  v.  Swope,  2  Watts,  78  ; 
Eplet/  V.  Witherow,  7  Id.  163,  167 ; 
Woods  V.  Farmere,  lb.  382,  387; 
Rogers  V.  Iloskins,  14  Georgia,  166; 
while  the  recent  case  of  Barnliart  v. 
GreensTiields,  28  English  Law  and 
Equity,  77,  would  seem  to  show,  that 
the  truth  and  authenticity  of  a  state- 
ment will  not  render  it  notice,  un- 
less it  is  made  by  a  party  in  interest, 
or  by  some  one  acting  on  his  behalf. 
But  this  doctrine  must  be  understood 
as  applying  to  notice  in  its  limited 
sense,  as  distinguished  from  know- 
ledge, or  such  information  as  is  sub- 
stantially equivalent  to  knowledge  ; 
Henry  v.  Rainman,  1  Casey,  354 ; 
3Ieux  V.  Bell,  1  Hare,  73  ;  Tilling- 
hast  V.  Champlin,  4  Rhode  Island, 
173,  215.  It  is  evident  that  if  it  be 
shown,  that  the  purchaser  knew  of 
the  existence  of  an  adverse  claim  or 
title,  it  cannot  be  necessary  to  prove 
notice,  and  that  it  must  be  immaterial, 
whether  his  knowledge  was  obtained 
from  the  parties  interested,  or  from 
third  persons;  Curtis  v.  Mundy,  3 
Metcalf,  405  ;  Currens  v.  Hurt,  Har- 
din, 37 ;  Rowan  v.  Adams,  1  S  &  M. 
Ch.  45 ;  Roberts  v.  Stanton,  2  Mun- 
ford,  129  ;  Leicis  v.  Bradford,  10 
Watts,  67;  Phillips  v.  The  Bank  of 
Lewistoicn,  6  Harris,  394  ;  Trefts  v. 
King,  lb.  157.  But  it  is  also  obvi- 
ous, that  information  of  the  existence 
of  an  adverse  claim,  will  be  more  ef- 
fectual in  putting  a  purchaser  on  his 
guard,  when  given  by  the  holder, 
than  when  given  by  a  stranger.  In 
the  former  case,  the  existence  of  the 
claim  is  beyond  dispute,  whatever  may 
be  its  validity,  while  in  the  latter,  both 


158 


NOTICE. 


its  existence  and  its  validity  depend 
upon   hearsay.     And    the   mere  fact 
that  a  cUiiiii  is  made  by  a  pei'son  in- 
terested in  enforcing  it,  affords  a  pre- 
sumption in  favor  of  its  reality,  which 
does  not  exist  in  favor  of  the  state- 
ments of  uninterested  persons.     But 
no  distinction  exists  beyond  this,  nor 
can  it  be  supposed,  that  a  purchaser 
is  entitled  to  act  with  a  wilful  disre- 
gard of  existing   rights,   merely  be- 
cause he  has  learnt   their  existence 
from  third  persons,  and  not  from  the 
parties   themselves.     The   true   rule, 
therefore,  with   regard   to   the  state- 
ments of  strangers,  and  of  parties  in 
interest,   would    seem    to   be,  that  a 
general  statement  of  the  existence  of 
an  adverse  title,  to  which  no  weight 
would  be  due,  when  proceeding  from 
a  stranger,  may  be  notice  when  com- 
ing from  the  party  interested,  and  not 
that  distinct  and  positive  information 
can  be  disregarded,  because  the  per- 
son Avho  gives  it,  has  no  interest  in 
the  property  to  which  it  relates.     A 
purchaser  cannot  go  on  with  safety  to 
complete   a  purchase,  after  learning 
the  existence  of  a  prior  conveyance 
of  the  property  by  the  vendor,  from 
a  person  present  as  a  witness,  or  even 
as  a  bystander,  at    the  execution  of 
the  deed  by  which  it  was  conveyed. 
And  it  can  hardly  be  doubted,  that 
the  same  result  will  follow  from  the 
statement  of  any  fact  within  the  know- 
ledge of  the  party  who  states  it,  which 
shows  that  the  title  purchased,  is  sub- 
ject to  the  legal  or  equitable  claims  of 
other  persons.     This  course  of  reason- 
ing seems  amply  sufficient  to  sustain 
the  case  of  Jiipph  v.  Ripple,  1  Rawle, 
386,  where  information  of  the  exist- 
ence of  an  oquitablo  charge  on  land, 
was  held  to  be  notice,  although  not 


proceeding  from  the  parties  directly 
interested,  without  a  resort  to  the  spe- 
cial ground  on  which  it  was  decided. 
And  in  some  cases,  this  doctrine  has 
been  carried  to  the  extent  of  holding, 
that  the  statements  of  strangers  will 
bind  the  purchaser,  whenever  they  are 
sufficiently  definite  to  attract  his  at- 
tention to  the  defect  in  the  title  which 
he  is  about  to  purchase,  and  to  furnish 
him  with  a  sufficient  clue  to  ascertain 
and  verify  its  existence  ;  Jachson  v. 
CaJdwdl,  1  Cowen,  622  ;  Pearson  v. 
Daniel,  2  Dev.  &  Bat.  Equity,  360 ; 
Winhorn  v.  Gorrell,  3  Iredell's  Eq. 
117. 

As  every  thing  which  puts  the  pur- 
chaser on  inquiry,  and  makes  it  his 
duty  to  institute  an  investigation  ope- 
rates as  notice,  it  is  obviously  import- 
ant to  determine  how  far  his  inquiries 
must  be  prosecuted,  and  when  he 
may  rest  satisfied  with  their  result, 
without  being  responsible  for  its  abso- 
lute truth  or  correctness.  The  ques- 
tion is  one  which  depends  in  great 
measure  on  the  circumstances  of  each 
particular  case,  and  can  hardly  be 
brought  within  the  limits  of  any  gen- 
eral rule;  but  there  is,  perhaps,  little 
risk  in  saying,  that  the  purchaser  will 
be  safe  in  the  use  of  due  care  and  dili- 
gence, and  ought  not  to  be  made  to 
suffer  for  a  deceit  practised  upon  him 
by  others,  which  he  has  not  facilitated 
or  occasioned  by  his  own  neglect; 
Ware  v.  Egmont,  31  English  Law  and 
Equity,  89.  While,  however,  there 
may  be  no  doubt  of  this  proposi- 
tion, it  is  not  less  true,  that  no  one 
shonld  be  satisfied  with  secondary  or 
uncertain  evidence,  while  better  evi- 
dence manifestly  remains  behind;  and 
that  the  investigation  of  a  title  should 
not  stop  with  reports  or  hearsay  state- 


LE     NEVE     V.     LE     NEVE. 


159 


ments,  in  any  case  where  the  original 
sources  of  information  lie  open,  and 
may  be  consulted ;  Jackson  v.  Roice, 

2  Simons  &  Stuart,  472 ;  a  purchaser 
being  liable  not  only  for  all  that  he 
actually  discovers,  but  for  all  that, 
with  due  diligence,  he  might  have 
discovered ;  Whitbread  v.  Jordan,  1 
Younge&Col.303;  Kennedyy.  Green, 

3  Mylne  &  Keene,  699 ;  Mui/hin  v. 
Kirhi/,  4  Richardson's  Equity,  105 ; 
Center  v.  The  BanJc,  22  Alabama, 
743;  M'Gehee  v.  Gindrat,  20  Id.  95. 
This  remark  is  emphatically  true  in 
those  cases  where  the  statements  by 
which  the  purchaser  is,  or  professes 
himself  to  have  been  misled,  proceed- 
ed from  partial  or  interested  witnesses; 
and  when  their  falsehood  might  have 
been  detected  by  an  inquiry  of  others 
whose  interest  would  have  prompted 
them  to  speak  the  truth  ;  Hudson  v. 
Warner,  2  Harris  &  Gill,  415;  Price 

v.  MDonald,  1  Maryland,  414.  The 
question  is,  however,  one  which  ad- 
mits of  numerous  distinctions,  and  is 
embarrassed  by  the  difficulty  of  dis- 
criminating between  the  just  confi- 
dence in  others,  which  should  attend 
on  every  business  transaction,  and  the 
facility  of  belief  which  invites  fraud, 
and  may  be  suspected  of  being  its  ac- 
complice. In  Jones  v.  Smith,  1  Hare, 
431 ;  1  Phillips,  244,  ante,  145,  the 
purchaser  was  held  free  from  blame  for 
not  inspecting  a  deed,  which  would 
have  disclosed  the  existence  of  the 
complainant's  equity,  on  the  ground 
that  his  only  reason  for  believing  it  to 
exist,  or  supposing  it  to  be  relevant  and 
material,  lay  in  the  information  given 
to  him  by  the  vendor,  which  had  been 
coupled  with  a  statement  that  the  in- 
strument related  solely  to  another  es- 
tate, and  had  no  reference  to  that  for 


which  the  parties  were  in  treaty. 
Taking  the  allegation  as  a  whole,  it 
was  said  to  show  that  the  deed  was 
irrelevant  and  immaterial,  and  would 
disclose  nothing  which  it  was  in  any 
way  important  to  learn ;  and  the  de- 
fendant was  held  to  have  been  under 
no  obligation  to  discredit  one  portion 
of  the  communication,  while  believing 
the  rest,  or  to  suppose  that  the  exist- 
ence of  the  deed  had  been  revealed  to 
him,  merely  with  a  view  to  mislead 
him  as  to  its  efi'ect. 

The  cases  of  Buttriak  v.  Holden,  13 
Metcalf,  355,  and  Center  v  Blair,  4 
Cushman,  310,  go  still  further,  by 
deciding  that  a  vendee  will  not  be 
charged  with  notice  by  admitting  that 
he  had  received  information,  which 
led  him  to  ask  the  vendor  whether  he 
had  not  made  a  prior  sale  to  the  com- 
plainant, and  that  he  went  on  to  make 
the  purchase  in  reliance  upon  an  alle- 
gation in  reply  to  his  inquiry,  that, 
although  such  a  sale  had  been  made, 
it  had  subsequently  been  rescinded, 
and  was  completely  at  an  end,  not- 
withstanding the  argument,  that  he 
ought  to  have  consulted  the  com- 
plainant, instead  of  relying  implicitly 
on  the  statements  of  the  vendor.  The 
general  principle,  that  no  one  is  bound 
to  suspect  fraud  or  imposition,  is  un- 
questionably sound,  and  will  protect 
the  purchaser,  whenever  the  informa- 
tion on  which  he  relies  is  communi- 
cated to  him  by  a  third  person,  who 
is  disinterested,  or  has  no  known  or 
assignable  motive  for  suppressing  part 
of  the  truth,  while  revealing  the  resi- 
due; Rogers  v.  Willy,  14  Illinois, 
65.  But  we  may  doubt  whether  a 
purchaser,  who  ig  deceived  by  relying 
on  the  statements  of  an  interested 
party  instead  of  consulting  more  au- 


160 


NOTICE. 


thentie  means  of  information,  can 
escape  from  the  consequences  of  his 
credulity,  on  the  ground  that  the  ex- 
istence of  these  means  became  known 
through  the  statements  by  which  he 
was  deceived,  and  that  he  conse- 
quently thought  it  unnecessary  to 
make  further  inquiry.  Thus,  a  ven- 
dee, who  learns  that  the  estate  which 
he  is  about  to  buy,  has  been  charged 
with  a  trust  for  the  payment  of  debts 
by  an  antecedent  conveyance,  will 
not  be  safe  in  taking  the  description 
of  the  trust  from  the  vendor,  without 
examining  the  deed,  or  in  giving  cre- 
dence to  his  assertion  that  the  debts 
have  been  paid,  instead  of  verifying 
the  fact  by  actual  inquiry,  because 
the  information  thus  given  shows  that 
the  deed  bears  directly  on  the  matter 
in  hand,  and  its  true  operation  ought 
to  be  ascertained  from  the  best  and 
most  trustworthy  souVces,  and  not  from 
a  party  whose  interest  lies  in  an  op- 
posite direction,  and  whose  memory 
may  deceive  him,  even  if  he  have  no 
wish  to  deceive  others;  Price  v.  M'- Do- 
nald, 1  Maryland,  40o,419 ;  Hudson  v. 
Warner,  2  Harris  &  Gr.  415.  A  similar 
view  was  taken  in  Russell  v.  Patrie, 
10  B.  Monroe,  184,  and  a  statement 
by  a  mortgagor,  that  the  mortgaged 
premises  were  subject  to  an  equitable 
lien"  held  to  make  it  the  duty  of  the 
morts;a<2:ee  to  have  recourse  to  the  lien 
creditor,  for  information  as  to  the  na- 
ture and  amount  of  the  debt,  instead 
of  relying  blindly  on  the  veracity  and 
exactness  of  the  mortgagor. 

It  is  not  necessary  in  any  case,  to 
constitute  notice,  that  it  should  be  in 
the  shape  of  a  distinct  and  formal 
communication,  and  it  will  be  iniplied 
in  all  cases  where  a  party  is  shown  to 
have  had    such    means  of  informing 


himself,  as  to  justify  the  conclusion 
that  he  might,  and  ought  to  have, 
availed  himself  of  them ;  Barnes  v. 
31^  Clinton,  3  Penna.  67;  Doyle  v. 
Teas,  4  Scammon,  202 ;  Tillinghast 
V.  Champlin,  4  Ehode  Island,  173, 
215.  Whatever,  therefore,  is  suflSci- 
ent  to  direct  the  attention  of  a  pur- 
chaser to  the  prior  rights  and  equities 
of  third  persons,  and  to  enable  him 
to  ascertain  their  nature  by  inquiry, 
will  operate  as  a  notice ;  Sigonrney 
V.  Mann,  7  Conn.  324  ;  Bootli  v.  Bac- 
num,  2  Id.  186 ;  Peters  v.  Goodrich, 
3  Id.  146  ;  Pendleton  v.  Fay,  2  Paige, 
202  ;  Hoxie  v.  Carr,  1  Sumner,  193  ; 
Ilaxchj  V.  Cramer,  4  Cowen,  717 ; 
Pearson  v.  Daniel,  2  Dev.  &  Bat.  Ch. 
360;  Doyle  v.  Teas,  4  Scammon, 
202;  Blaisdell  v.  Stevens,  16  Ver- 
mont, 179;  Stafford  v.  Ballon,  17 
Id.  320;  31'Daniels  v.  The  Flower 
Brook[Man.  Co.,  22  Id.  274  ;  Stevens 
v.  Goodenongh,  26  Id.  676;  Hiirde 
V.  Pettier,  1  M'Lean,  110  ;  Bunting 
V.  Ricks,  2  Dev.  &  Bat.  Ch.  130; 
Bartlett  v.  Glassock,  4  Missouri,  62 ; 
Gibbes  V.  Cohb,  7  Richardson's  Eq. 
54;  Ringgold  v.  Bryan,  3  Maryland 
Ch.  Decisions,  488  ;  StocJcett  v.  Tay- 
lor, lb.  537  ;  Ringgold  v.  Waggoner, 
14  Arkansas,  69 ;  Swarthout  v.  Ctir- 
tis,  1  Selden,  301.  Thus,  in  Tilling- 
hast v.  Chamjilin,  4  Rhode  Island, 
173,  215,  an  inference  of  notice,  that 
land  which  had  been  conveyed  to  the 
partners  as  tenants  in  common,  was  the 
property  of  the  partnership,  was  drawn 
from  the  acquaintance  of  the  pur- 
chaser with  the  affairs  of  the  partnei*- 
ship,  and  his  residence  in  the  village 
where  the  land  was  held  and  used  for 
partnership  purposes ;  while,  in  Wes- 
tervelt  v.  Haff',  2  Sandford,  Chan- 
cery, 98,  presence  at  conversations. 


LE     NEVE     V.     LE     NEVE. 


161 


in  which  the  defect  of  the  mortga- 
gor's title  was  the  subject  of  discus- 
sion between  himself  and  his  agent, 
was  held  to  bind  the  mortgagee;  while 
the  cases  would  seem  to  show,  that  a 
party  will  be  presumed  to  be  acquaint- 
ed with  everything  which  appears  in 
the  papers  which  he  executes,  or  which 
are  executed  and  delivered  by  others 
to  him,  in  the  course  of  the  transac- 
tion in  which  the  question  arises ; 
Guion  V.  Knapp,  6  Paige,  85 ;  The 
Howard  Insurance  Company  v.  Hal- 
sey,  4  Sandford,  565 ;  4  Selden, 
271.  In  like  manner,  the  attesta- 
tion of  a  conveyance  by  a  witness, 
under  circumstances  which  leave  no 
doubt  that  he  knew  and  understood 
its  contents  and  operation,  may  ope- 
rate as  notice ;  Boling  v.  Ewing,  9 
Dana,  76;  llocatta  v.  Morgatroyd,  1 
Peere  Williams,  393 ;  although  it 
seems  that  no  inference  of  knowledge 
can  be  drawn  from  the  mere  fact  of 
attestation,  in  the  absence  of  other 
and  corroborating  proof;  Hill  on 
Trustees,  512 ;  Sugden  on  Vendors, 
296,  9th  ed.  But  in  whatever  mode 
information  may  be  acquired,  it  must 
not  only  be  such  as  to  alarm  the  pur- 
chaser, and  put  him  on  inquiry,  but 
it  must  also  be  sufficient  to  enable  him 
to  conduct  that  inquiry  to  a  success- 
ful termination ;  for  otherwise,  the 
general  rule  that  a  title  shall  not  be 
impeached  by  uncertainties,  will  in- 
tervene, for  the  protection,  both  of 
the  vendor  and  purchaser;  Huglison 
V.  Mandeville,  4  Dessaussure,  87;  Mil- 
ler V.  Gresson,  5  W.  &  S.  284.  It  will, 
therefore,  be  a  sufficient  answer  in  all 
cases  to  an  allegation  of  notice,  to 
show  that  the  purchaser  could  not 
have  obtained  the  necessary  informa- 
tion, by  an  investigation  conducted  in 
VOL.   II. — 11 


the  usual  course  of  business  ;  Bellas 
v.  M'Carty,!^  Watts,  26;  Wilson  \. 
]\P  Cullough,  11  Harris,  440.  Thus, 
where  the  agent  authorized  to  take  an 
assignment  of  a  mortgage,  was  inform- 
ed of  the  existence  of  a  prior  mort- 
gage, and  on  searching  the  record, 
found  an  absolute  conveyance  of  the 
property,  but  no  mortgage,  it  was  held 
that  he  was  justifiable  in  concluding 
that  no  mortgage  existed,  without 
making  further  inquiry ;  Jackson  v. 
Van  Valkc7iburgh,  8  Cowen,  260. 

It  is  sufficiently  plain,  that  what- 
ever the  rule  may  be,  when  the  infor- 
mation, which  is  alleged  to  have  ope- 
rated as  notice,  comes  solely  from  the 
vendor,  and  therefore  carries  with  it 
a  presumption  of  fairness,  which  may 
tend  to  throw  the  purchaser  oif  his 
guard,  he  should  not  be  resorted  to 
for  the  purpose  of  verifying  or  con- 
tradicting the  truth  of  statements 
coming  from  others,  and  capable  of 
being  tested  by  a  reference  to  docur 
ments  or  by  inquiries  made  of  unpre- 
judiced persons;  Ball  v.  Noble,  40 
Maine,  459;  Warren  v.  Scott,  11 
Foster,  332. 

The  presumption  of  notice  has  never 
been  carried  further  than  in  Sergeant 
V.  Ingersoll,  7  Barr,  340 ;  3  Harris, 
343,  where  knowlege  that  the  legal 
title  to  the  estate  purchased  was  held 
in  trust  for  the  vendor,  and  subject 
to  his  direction,  was  held  to  affect  the 
purchaser  with  notice  of  an  interven- 
ing equity,  growing  out  of  an  unre- 
corded covenant  by  the  vendor  in  fa- 
vor of  the  defendant.  The  decision 
was  based  upon  two  assumptions  ;  one 
that  the  purchaser  was  bound  to  ask 
the  vendor  whether  he  had  made  any 
bargain  or  agreement  with  other  per- 
sons, which  deprived  him  of  the  rio-ht 


162 


NOTICE. 


to  sell ;  the  other,  that  the  vendor 
would  have  answered  the  question 
truly  had  it  been  put,  which  would 
seem  to  have  been  equally  unfounded 
in  point  of  fact  and  of  legal  inference. 
A  purchaser  is  not  bound  to  look  for 
information  on  such  points  to  the 
vendor,  and  ought  not  to  rely  upon  it 
if  given,  because,  if  the  transaction  is 
a  fair  one,  there  is  no  reason  for  in- 
quiry :  and  if  it  is  not,  the  vendor 
will  naturally  keep  his  own  secret. 
Even,  therefore,  when  the  circum- 
stances are  such  as  to  induce  a  suspi- 
cion, that  the  vendor  is  in  possession 
of  information  which  would  be  ma- 
terial if  communicated,  but  which 
cannot  be  obtained  unless  he  chooses 
to  reveal  it,  they  will  not  operate  as 
notice,  because  they  do  not  offer  the 
means  of  turning  that  doubt  into  cer- 
tainty. A  failure  to  inquire  of  those 
in  the  actual  possession  of  the  pro- 
perty, will  render  the  pui'chaser  an- 
swerable for  all  that  might  have  been 
learnt  had  the  inquiry  been  made, 
because  silence  or  misrepresentation 
on  their  part,  will  operate  as  an  es- 
toppel ;  but  an  inquiry  of  one  who  has 
no  interest  in  speaking  the  truth,  and 
whose  interest,  on  the  contrary,  lies 
in  concealing  it,  affords  no  reasonable 
prospect  of  success,  and  consequently 
need  not  be  made.  Had  the  vendor, 
in  Sergeant  v.  Ingersoll,  disclosed  the 
existence  of  the  covenant  which  con- 
stituted the  defendant's  equity,  while 
misrepresenting  its  nature  or  opera- 
tion, the  plaintiff  might  have  been 
affected  with  notice  under  the  doc- 
trine of  Price  v.  M'Dunah),  but  in 
the  absence  of  such  an  avowal,  there 
was  no  obligation  to  ask  for  a  disclo- 
sure of  that,  the  existence  of  which 
he  had  no  intimation,  and  which  would 


be  sedulously  withheld  from  him  if  it 
existed  ;  11  Harris,  440,  445. 

The  language  held  in  Sergeant  v. 
Ingersoll,  would  seem  to  imply  that 
the  purchaser  of  an  equity  is  not  only 
subject  to  all  prior  equities,  which 
is  undoubtedly  true,  but  that  he  is 
also  affected  with  notice  of  their  ex- 
istence, and  that  the  acquisition  of  a 
legal  title  from  a  trustee,  cannot  ope- 
rate as  a  purchase  for  value,  if  made 
contemporaneously  with,  and  as  the 
consequence  and  completion  of,  a 
contract  with  the  cestui  que  trust; 
and  an  anonymous  case  in  Freeman's 
Reports,  vol.  2,  173,  pi.  17G,  was 
said  to  show,  that  a  purchaser,  who 
knows  that  the  legal  estate  is  in  a 
trustee,  is  bound  to  take  notice  of  the 
trust.  This  rule,  however,  can  only 
apply  to  so  much  of  the  trust  as  is  set 
forth  in  writing  or  in  some  other  way 
known  to  the  trustee,  and  capable  of 
being  communicated  by  him,  and  has 
no  application  to  equities,  which,  like 
those  in  Ingersoll  v.  Sergeant,  grow 
out  of  prior  transactions  of  the  cestui 
que  trust,  and  are  studiously  concealed 
both  from  the  trustee  and  the  pur- 
chiiser.  Inquiry  cannot  be  a  duty,  nor 
can  the  failure  to  make  it  operate  as  a 
bar,  unless  the  truth  would  have  been 
disclosed  had  the  inquiry  been  made ; 
Frantz  v.  Garherich,  1  Penn.  11.  257, 
262  J  and  hence  it  can  hardly  be  ne- 
cessary to  ask,  whether  those  who 
unite  in,  or  make  a  conveyance,  are 
cognizant  of  facts,  which  an  honest 
mai}  would  reveal  without  being  asked, 
and  which  no  inquiry  can  draw  from 
a  rogue.  The  true  rule  seems  to  be, 
that  while  tKe  purchase  of  an  equity 
gives  the  purchaser  no  superiority- 
over  prior  rights  and  equities,  it  nei- 
ther affects  him  with  notice  of  their 


LE     NEVE     V.     LE     NEVE. 


163 


existence  at  the  time,  nor  takes  away 
his  right  to  protect  himself  against 
tliem,  by  obtaining  a  conveyance  of 
the  legal  title ;  Carroll  v.  Johnston, 
2  Jones,  Equity,  120 ;  Baggarly  v. 
Gaither,  lb.  80  ;  ante,  73.  The  doc- 
trine of  tacking  under  which  the 
mortgagee  of  an  equity  of  redemption 
might  obtain  priority  over  a  prior  en- 
cumbrance, by  taking  an  assignment 
of  the  first  mortgage,  and  thus  secur- 
ing the  possession  of  the  legal  title,  is 
a  familiar  example  of  this  principle, 
Coote  on  Mortgages,  239,  409 ;  ante, 
vol.  1,  GDI,  note  to  Marsh  v.  Lee,  and  is 
obviously  inconsistent  with  the  posi- 
tion taken  in  Imjersoll  v.  Sergeant. 

It  seems  to  be  well  settled  in  Eng- 
land, that  a  purchaser  from  a  cestui 
que  trust,  or  other  holder  of  an  equit- 
able estate  or  interest  in  land,  is  not 
bound  to  seek  for  information  of  prior 
sales  or  charges  from  the  trustee ; 
Dart  on  Vendors,  229 ;  because  the 
latter  is  bound  to  signify  their  exist- 
ence without  being  asked ;  or,  at  all 
events,  not  to  join  in  any  act  or  con- 
veyance by  which  they  can  be  post- 
poned or  prejudiced;  Hill  on  Trus- 
tees, 281.  This  is  a  necessary  infer- 
ence from  the  rule,  that  a  mortgage 
or  sale  of  an  equitable  estate,  or  in- 
terest in  land  or  other  property,  which 
has  the  nature  of  realty,  by  a  cestui 
que  trust,  need  not  be  communicated 
to  the  trustee ;  Jones  v.  Jones,  8  Si- 
mons, 633  ;  Wiltshire  v.  Rabbits,  14 
Id.  76 ;  Wilmot  v.  Pike,  5  Hare,  14  ; 
Peacock  v.  Burts,  Coote  on  Mort- 
gages, Appendix,  2103 ;  Sugden  on 
Vendors,  vol.  3,  433,  10th  ed. ;  which 
clearly  implies  that  equity  does  not 
regard  the  trustee  as  the  source  or 
channel  through  which  information  of 
prior  grants  is  to  be  given,  or  from 


which  subsequent  purchasers  should 
seek  it. 

The  doctrine  of  constructive  notice, 
as  distinguished  from  notice  in  fact, 
has  been  carried  quite  as  far  as  justice 
and  policy  permit  or  require,  and 
ought  not  to  be  pushed  to  the  extent 
of  denying  a  purchaser  the  benefit 
of  the  presumption  in  favor  of  good 
faith  and  innocence,  unless  he  is 
proved  to  have  acted  fraudulently,  or 
to  have  been  guilty  of  the  gross  ne- 
glect, which  is  equivalent  in  efi"ect,  if 
not  in  design,  to  actual  fraud ;  Ware 
V.  Egmont,  31  English  Law  ct  Equity, 
89  ;  ante,  139.  But  it  must,  notwith- 
standing, be  remembered,  that  a  fail- 
ure to  take  certain  well-established 
and  reasonable  precautious,  such  as  a 
thorough  examination  of  title-papers, 
a  search  of  the  record,  and  an  inquiry 
into  the  rights  and  equities  of  those 
who  are  actually  in  possession,  may 
justly  be  characterized  as  gross  negli- 
gence, and  will  consequently  make 
the  purchaser  liable  for  all  the  conse- 
quences of  omissions,  which  are  equally 
injurious  whether  they  proceed  from 
design  or  from  laches. 

It  is  well  settled,  under  the  doc- 
trine held  in  the  principal  case,  and 
universally  followed,  that  notice  to 
an  agent  is  notice  to  the  principal; 
Hovey  v.  Blanchard,  13  New  Hamp- 
shire, 145 ;  Astor  V.  Wells,  4  Whea- 
ton,  466 ;  Barnes  v.  M-  Christie,  3 
Penna.  67  ;  Jackson  \.  Sharp,  9 
Johnson,  163  ;  Jackson  v.  Winslow, 
9  Cowen,  13  ;  Jackson  v.  Leek,  19 
Wend.  339;  Westervelt  v.  Haff,  2 
Sandford,  98 ;  Griffith  v.  Griffith,  2 
Paige,  315;  Blair  v.  Owles,  1  Mun- 
ford,  38;  The  Bank  of  the  United 
States  V.  Davis,  2  Hill,  451.  This 
rule  prevails  whether  the  agency  be 


164 


NOTICE. 


express  or  implied,  and  hence,  when 
land  is  conveyed  to  two  partners  in  sa- 
tisfaction of  a  partnership  debt,  notice 
to  one  will  be  sufficient  to  affect  both; 
Watson  V.  Wells,  5  Conn.  468 ;  be- 
cause one  partner  is  always  authorized 
to  represent  the  others,  in  all  that  con- 
cerns the  collection  of  debts  due 
the  partnership;  although,  when  this 
feature  is  absent,  the  inere  circum- 
stance that  a  purchase  is  made  by  two 
persons  jointly,  will  not  make  them 
agents  for  each  other,  nor  render  no- 
tice  to  one  binding  on  both  ;  Flagg 
V.  Mann,  2  Sumner,  486,  534;  Sny- 
der w.  SjyonaUc,lYi\\\,  567;  7  Id.  427. 
In  order,  however,  to  bind  the 
principal,  the  notice  to  the  agent 
must  be  in  the  course  of  the  trans- 
action, in  which  he  is  acting  on 
behalf  of  the  principal,  for  otherwise, 
it  will  have  no  legal  or  necessary  con- 
nection with  the  latter;  Bracken  v. 
Miller,  4  W.  &  S.  102 ;  Hood  v.  Falinc- 
stock,  8  Watts,  489  ;  The  Bank  of  the 
United  States  v.  Davis,  2  Hill,  451; 
Winchester  v.  The  Bcdtimore  Rail- 
road Co.  4  Maryland,  231;  The  How- 
ard Ins.  Co.  V.  Halsey,  4  Selden,  271 ; 
and  hence,  information  acquired  b}-,  or 
given  to  a  director  or  other  officer  of 
a  bank,  will  not  operate  as  notice  in 
future  transactions,  unless  he  is  pro- 
secuting the  business  in  which  the 
question  arises  for  the  bank,  at  the 
time  when  the  information  is  commu- 
nicated to  him ;  Winchester  v.  The 
Railroad ;  The  United  States  Insur- 
ance Co.  V.  Shrhcr,  3  Maryland  Ch. 
381 ;  Wdson  v.  M'  Culhnujh,  1 1.  Harris. 
440 ;  The  Fulton  Bank  v.  The  New 
York  and  Sharon  Canal  Co.,  4  Paige, 
127  ;  The  North  River  Bank  V. 
Aymar,  3  Hill,  262;  The  Farmer  s 
Bank  V.  Payne,  25  Conn.  444.      For 


the  same  reason,  notice  to  a  trustee, 
before  his  appointment,  will  not  affect 
a  subsequent  purchase  by  him  on  be- 
half of  the  cestui  que  trust ;  Henry  v. 
Morgan,  2  Binn.  497;  Ross  v.  Horton, 

2  Cushman,  591;  while  an  executor 
cannot  be  charged  with  notice  by 
proof  that  the  facts  were  communi- 
cated to  him  before  the  death  of  the 
testator;  Gold  v.  Death,  Croke,  Jac. 
381;  Hobart,  92.  And  when  taken 
in  connection  with  this  limitation,  no- 
tice to  an  agent  would  seem  rather  to 
be  actual  than  constructive  notice  to 
the  principal,  for  the  acts  of  the  one 
within  the  scope  of  the  agency,  are, 
in  point  of  law,  the  acts  of  the  other, 
and  a  principal  cannot  be  allowed  to 
avail  himself  of  an  interest  acquired 
by  the  fraud  of  his  agent,  in  prejudice 
of  the  rights  of  third  persons  ;  Bowers 
V.  Johnson,  10  Smedes  «&  Marshall, 
169;  Meadows  v.  Smith,  7  Iredell's 
Equity,  7;  Hnnter  v.  Tafnm,  14 
Alabama,  657 ;    Kennedy   v.    Green, 

3  Mylne  &  Keene,  699.  It  baa, 
however,  been  decided,  that  a  wife  is 
not  bound  by  notice  to  her  husband, 
in  the  course  of  a  purchase  made  by 
him  with  her  money,  and  for  her 
benefit,  for  a  married  woman  cannot 
give  an  agent  authority  to  bind  her- 
self to  her  own  injury,  nor  can  her 
husband  be  regarded  in  the  light  of 
an  ordinary  agent;  Snyder  v.  Spon. 
ahle,  1  Hill,  ^567 ;  7  Id.  427.  But 
the  general  principle,  that  none  can 
adopt  or  profit  by  the  fraud  of  an- 
other, without  becoming  an  accom- 
plice in  the  wrong,  however  free 
from  blame  he  may  have  been  in 
the  first  instance,  reaches  beyond  the 
relation  of  principal  and  agent,  and 
would  seem  broad  enough  to  include 
the   case   of  a   married   woman,  who 


LE     NEVE     V.     LE     NEVE. 


165 


seeks  to  retain  property  acquired  iu 
violation  of  right,  by  her  husband,  or 
by  any  one  else  acting  for  her,  or  in 
her  behalf.  See  Huguenin  v.  Basely, 
post,  part  2, 

It  is  held,  both  in  England  and  the 
United  States,  that  actual  and  une- 
quivocal possession  is  notice,  not  so 
much  because  possession  is  evidence 
of  actual  notice,  as  because  it  is  the 
duty  of  one  who  is  about  to  purchase 
real  estate,  to  ascertain  by  whom, 
and  in  what  right  it  is  held  or  occu- 
pied ;  Sailor  v.  Hertzog,  1  Wharton, 
269;  Wood  v.  Farmere,  7  Watts,  385; 
Dielil  V.  Page,  2  Green,  Ch.  143 ; 
Bailey  v.  White,  13  Texas,  114 ;  Bald- 
win V.  Johnson,  Saxton,  441 )  Dis- 
hroio  V.  Jones,  Harrington,  Ch.  48 ; 
Baynard  v.  Norris,  5  Gill,  538 ; 
Webber  v.  Taylor,  2  Jones,  Eq.  9; 
Ringgold  v.  Bryan,  3  Maryland  Ch. 
488;  Davis  v.  Hopkins,  15  Illinois, 
519 ;  Landes  v.  Brant,  10  Howard, 
348 ;  Bailey  v.  Richardson,  15  Eng- 
lish Law  and  Equity,  218.  The  cases 
in  which  this  doctrine  has  been  ap- 
plied are  numerous,  and  in  most  of 
them  it  has  been  held,  that  possession 
is  constructive  notice,  or  in  other 
words,  that  the  presumption  of  notice 
to  which  it  gives  rise,  is  one  of  law, 
and  cannot  be  explained  away  or  re- 
butted ;  C'hestermati  v.  Gardner,  5 
Johnson,  Ch.  R.  39 ;  Governeur  v. 
Lynch,  2  Paige,  300 ;  Grimstone  v. 
Carter,  3  Id.  421 ;  Krider  v.  Lajferty, 
1  Wharton,  304;  Lightner  v.  Mooncy, 
10  Watts,  412;  Sailor  v.  Hertzog,  4 
Wharton,  259 ;  i/'  CuUough  v.  Cowher, 
5  W.  &  S.  427 ;  Jacques  v.  Weeks,  7 
Watts,  261  ;  Lewis  v.  Bradford,  10 
Id.  67;  Kerr  v.  Lay,  2  Harris,  112; 
Macon  V.  Sheppard,  2  Humphreys, 
335;  Hardy  v.  Summers,  10  Gill  & 


Johnson,  310  ;  Hachwith  v.  Damron, 
1  Monroe,  237 ;  Knox  v.  Thompson, 
1  Little,  350 ;  Buck  v.  Halloway,  2 
J.  J.  Marshall,  178  ;  Miller  v.  Schack- 
el/ord,  4  Dana,  258  ;  Burt  v.  Cassity, 
12  Alabama,  734;  Scroggins  v.  Lau- 
gal,  8  Id.  382;  Brice  v.  Brice,  5 
Barbour's  Supreme  Court,  535;  Dixon 
V.  Doe,  1  Smedes&  Marshall,  70;  Wilty 
V.  Hightower,  6  Id.  345;  Argen- 
hright  v.  Campbell,  3  Henning  & 
Munf.  144 ;  Johnston  v.  Glancy,  4 
Blackford,  94 ;  Webster  v.  Maddox,  6 
Maine,  256 ;  Knox  v.  Plummer,  7  Id. 
464;  MLaughlin  v.  Shepherd,  32 
Id.  143;  Hanly  v.  Morse,  lb.  287; 
Tuttle  V.  Jackson,  6  Wend.  213; 
Parks  Y.  Jackson,  11  Id.  442;  Jenkins 
V.  Bodley,  Smedes  &  Marshall,  Ch. 
338.  There  are,  however,  other  de- 
cisions in  which  the  effect  of  posses- 
sion as  notice,  has  been  treated  as 
open  to  explanation,  or  rebuttal;  Wil- 
liamson  v.  Brown,  15  New  York,  354; 
Cunningham  v.  Buckingham,  1  Ohio, 
264 ;  Flagg  v.  Mann,  2  Sumner,  556  ; 
Harris  v.  Arnold,  1  Rhode  Island, 
125.  Thus  it  was  held  in  Rogers  v. 
Jones,  8  New  Hampshire,  204,  that 
the  statements  of  the  grantor  of  land, 
who  had  retained  the  deed  under  a 
promise  to  record  it,  which  had  not 
been  fulfilled,  that  it  had  never  been 
delivered,  were  sufficient  to  rebut  the 
presumption  of  notice,  arising  from 
the  possession  of  the  grantee,  and  that 
possession  would  only  operate  as  notice 
of  rights  existing  at  the  time  when  it 
was  taken,  and  not  of  those  acquired 
subsequently.  The  latter  point  is  sup- 
ported by  the  language  held  iu  31'3Ie- 
chan  v.  Grijing,  3  Pick.  154 ;  and 
Hewes  v.  Wiswell,  8  Maine,  94 ;  but 
was  denied  to  be  law  in  Matthews  v. 
Dcmeritt,  22  Id.  312 ;  where  it  was 


166 


NOTICE. 


held  that  the  presumption  of  notice 
arising  from  possession,  although  not 
incontrovertible,  extends  to  every  title 
existing  at  the  time  of  the  purchase, 
even  when  acquired  subsequently  to 
the  period  at  which  the  possession  ori- 
ginated, without  any  visible  or  actual 
change  of  possession.  A  similar  point 
was  decided  in  3I'Kecknie  v.  Hoshins, 
23  Maine,  230.  And  where  posses- 
sion is  taken  under  one  title,  it  will 
not  lose  its  eflfect  as  a  protection, 
merely  because  another  title  is  subse- 
quently cast  by  law  on  the  tenant, 
unless  he  does  some  act  of  a  nature  to 
indicate  his  intention  to  hold  under 
the  latter,  to  the  exclusion  of  the  for- 
mer. Thus  it  was  held  in  Wood  v. 
Farmere,  7  "Watts,  382,  that  when 
a  son  went  into  possession  under  a 
parol  sale  by  the  father,  a  purchaser 
under  a  judgment  against  the  father, 
after  his  death,  was  not  entitled  to 
attribute  the  possession  of  the  son  to 
the  title  acquired  by  descent,  and  not 
by  purchase.  -It  is,  however,  univer- 
sally conceded,  that  to  render  posses- 
sion, a  safeguard  to  title,  both  must  co- 
exist at  the  time  of  the  purchase;  be- 
cause a  vendee  is  not  bound  by  any- 
thing which  occurs  after  he  buys; 
Ertpert  v.  Merk,  15  Illinois,  540. 

It  has  also  been  held  that  where  a 
party  has  put  a  conveyance  to  another 
6n  record,  he  will  be  estopped  from 
relying  on  his  continuance  in  posses- 
sion, as  notice  of  a  resulting  trust  to 
himself,  for  under  such  circumstances 
the  purchaser  is  not  bound  to  go  be- 
yond the  declarations  of  the  parties 
as  publicly  recorded,  and  inquire  into 
the  actual  relations  subsisting  between 
them  ;  Scott  v.  Gallagher,  14  S.  &  R. 
389  ;  Wood  v.  Farmere,  7  Watts,  382 ; 
NctvhaU  V.  Fierce,  5  Pick.  440.  But 


in  Randall  v.  SUvertJiorn,  4  Barr, 
173,  the  Supreme  Court  of  Pennsyl- 
vania, so  far  departed  from  this  doc- 
trine, as  to  hold  that  the  occupation 
and  enjoyment  of  an  easement  on  the 
land  of  a  grantee,  was  notice  to-  a  pur- 
chaser of  a  parol  reservation  in  favor 
of  the  grantor,  although  the  deed  as 
recorded,  was  absolute  on  its  face. 
And  in  Webster  v.  31addox,  6  Maine, 
256;  and  Kent  v.  Plunimer,  7  Id. 
464,  it  was  decided  that  the  continu- 
ing possession  of  the  grantor,  was  suffi- 
cient evidence  of  a  reconveyance  by 
the  .  grantee,  although  both  convey- 
ances were  substantially  parts  of  the 
same  transaction,  and  while  the  deed 
by  which  the  grantor  departed  with 
his  title,  was  put  on  record,  that  by 
which  it  was  reconveyed  to  him,  was 
not.  But  there  can  be  but  little  doubt, 
that  when  a  man  remains  in  posses- 
sion of  land,  after  executing  an  abso- 
lute deed  of  conveyance,  the  presump- 
tion will  be  that  his  possession  is  con- 
sistent with  the  conveyance,  and  that 
he  is  a  mere  tenant  at  sufferance  to 
the  grantee,  unless  it  is  shown  clearly, 
that  he  held  adversely  to  the  latter ; 

The  New  YorJc  Life  Ins.  Co.  v.  Cut- 
ler, 3  Sandford,  176. 

It  is  well  settled,  that  to  be  effec- 
tual as  notice,  possession  must  be  dis- 
tinct and  unequivocal,  and  of  such  a 
nature  as  to  put  a  purchaser  on  his 
guard,  and  not  to  mislead  him ;  But- 
ler V.  Stevens,  26  Maine,  484;  Bell 
V.  Twilight,  2  Foster,  50 ;   Wright  v. 

Wood,  11  Harris,  130  :  so  that  if  con- 
tinued for  twenty-one  years,  it  would 
have  barred  the  title  of  the  purchaser; 
3Iartin  v.  Jackson,  3  Casey,  504. 
Thus  where  part  of  a  tract  of  land  was 
sold  by  parol,  and  the  vendee  put  in 
possession,  but  the  vendor  retained  pos- 


LE     NEVE     V.     LE     NEVE. 


167 


session  of  the  residue,  and  employed 
it  for  the  purposes  of  his  business,  it 
was  decided,  that  as  there  was  nothing 
to  distinguish  the  possession  of  the 
vendee  from  that  of  the  vendor,  it 
would  not  operate  as  notice  to  a 
subsequent  purchaser ;  BiUington  v. 
Welsh,  5  Binney,  132.  And  it  has 
also  been  held  in  a  number  of  in- 
stances, that  where  the  possession  of 
a  party  is  consistent  with  his  title  as 
set  out  of  record,  he  cannot  be  per- 
mitted to  rely  on  it  as  notice  of  an- 
other and  different  title,  to  the  injury 
of  a  subsequent  purchaser,  who  has 
bought  on  the  faith  of  the  recorded 
title  ;  The  Great  Falls  Co.  v.  Wooster, 
15  New  Hampshire,  312.  Thus  where 
a  mortgagee  went  into  possession  of 
the  mortgaged  premises,  under  a  pa- 
rol sale  by  the  mortgagor,  it  was  held 
that  the  law  would  refer  his  posses- 
sion to  his  recorded  title  under  the 
mortgage,  and  would  not  view  it  as 
raising  a  legal  presumption  of  notice 
of  the  unrecorded  title,  to  which  it 
was  really  attributable;  Plumer  v. 
Robertson,  6  S.  &  R.  184.  And 
where  one  of  two  tenants  in  common, 
took  a  deed  from  the  other  of  his  share 
of  the  land,  and  exercised  acts  of  own- 
ership over  the  whole,  by  repairing 
the  fences,  and  pasturing  his  cattle, 
it  was  decided  that  as  these  acts  were 
referable  to  his  title  before  the  con- 
veyance by  the  other  tenant,  they  were 
not  notice  of  that  which  he  acquired 
under  the  conveyance  ;  M'3Iechan  v. 
Griffing,  3  Pick.  149.  The  same 
point  was  decided  in  Kendall-^.  Law- 
rence, 22  Pick.  542.  And  it  is  univer- 
sally admitted  that  possession  cannot 
be  notice,  except  during  its  continu- 
ance, and  that  even  when  the  vendor 
is  out  of  possession,  the  vendee  is  not 


bound  to  take  notice  of  the  antecedent 
possession  of  third  persons  ;  Boggs  v. 
Varner,  6  W.  &  S.  469,  474 ;  Hewes 
V.  Wiswell,  8  Maine,  94;  Cainphell\. 
Brackenrulge,  8  Blackford,  471. 

The  cases  also  show  that  the  pos- 
session must  be  actual,  and  must  be 
of  such  a  nature  as  would  suffice  to 
constitute  a  disseisin  or  adverse  pos- 
session; Hanrich  v.  Powell,  9  Ala- 
bama, 409;  Martin  v.  Jackson,  3 
Casey,  504.  Thus  it  was  said  in 
M'Mechan  v.  Griffing,  that  occasional 
acts  of  ownership,  by  pasturing  cattle 
or  removing  fences,  would  not  be  suf- 
ficient to  constitute  such  a  possession 
as  would  be  notice,  unless  they  were 
so  far  continuous  that  if  done  by 
wrong  under  a  claim  of  title,  they 
would  lose  the  character  of  mere  tres- 
passes, and  acquire  that  of  a  disseisin. 
The  law  was  held  the  same  way  in 
Martin  v.  Jackson,  while  it  was  de- 
cided in  Holmes  v.  Stout,  3  Grrceu, 
Ch.  492  ;  2  Stockton,  Ch.  419,  that 
cutting  timber,  from  time  to  time,  in 
woodland  at  a  distance  from  the  dwell- 
ing of  the  party  who  cut  it,  was  not 
such  a  possession  as  would  give  con- 
structive notice  of  an  unrecorded  title. 
The  case  of  Kendall  v.  Lawrence,  22 
Pick.  542,  may  be  cited  as  tending  to 
support  the  same  position.  There 
may,  however,  be  an  actual  posses- 
sion by  the  use  and  cultivation  of 
land,  without  building  and  residence 
upon  it;  and  where  a  grantee  planted 
willows  upon  the  land,  which  he  cut 
and  used  every  year  in  his  business  as 
a  basket-maker,  his  possession  was 
held  sufiiciently  actual  and  notorious, 
to  supply  a  failure  to  register  his 
deed ;  Krider  v.  Lafferty,  1  Wharton, 
303. 

It  would  seem  to  be  well  settled,  in 


168 


NOTICE. 


England,  that  tlie  effect  of  possession 
as  notice,  is  limited  to  tlie  title  of  the 
party  actually  in  possession,  and  does 
not    extend  to  that    of   those    under 
whom  possession  is  held.     And  this 
doctrine  has  been  carried  to  the  ex- 
tent of  holding,  that  the  possession  of 
a  tenant  will  not  affect  a  purchaser 
with  notice  of  the  title  of  the  land- 
lord; Sugden  on  Vendors,  vol.  3,  231, 
233;    pi.    48,  55.     "Knowledge   of 
possession,"    said    Sergeant,    J.,   in 
Jaques  v.   Weeks,  7  Watts,  261,  272, 
"has  not  the   effect  of  visiting  the 
purchaser  with  notice  of   every  fact 
and   circumstance   which   he    might 
have  learned  by  making  inquiry  of 
the  possessor ;  and  if  we  recur  to  first 
principles,  it  would  seem  that  the  ut- 
most that  could  fairly  be  implied  from 
the  possession  by  another  person  than 
the  grantor  is,  that  such  possessor  has 
some  claim  or  title  to  the  land,  and 
therefore    the    purchaser,    generally 
speaking,    is    to    be    considered    as 
taking  subject  to  such  claim  or  title." 
The  view  thus  taken,  is  fully  sustained 
by  the   language   held   in  Flagg  v. 
3Iann,    2    Sumner,    486,    557,    and 
BficMie  V.  Bcdttic,  21  Missouri,  313, 
while    it    was    said    in    Barkart    v. 
GrcensMeMs,  28  English  Law  &  Eq. 
77,  that  there  was  not  only  an  entire 
absence  of  authority  for  the  idea  that 
a  purchaser,  who  omitted  to  inquire 
into  the  title  of  an  occupier  of  land, 
would  be  affected  with  notice  of  other 
equities  than  those  of  the  occupier  him- 
self, but  that  whatever  authority  there 
was  went  directly  to  negative^  such  a 
proposition.     On  the  other  hand  the 
cases  of  Sailor  v.  Ifertzor/,  4  Wharton, 
259;    Hood  V.   Fahnestock,   1    Barr, 
470;  Barr  v.  Dai/,  2  Harris,  112, 
117;  Tiud  Wright  v.  Wood,  11  Id.  130, 


sustain  the  broader,  and  perhaps  more 
dangerous  principle,  that  the  posses- 
sion of  a  tenant  operates  as  notice,  not 
only  of  his  own  title,  but  of  that  of 
the  landlord  under  whom  he  claims. 
But  these  decisions  would  perhaps 
hardly  be  followed  beyond  the  limits 
of  the  state  where  they  were  made ; 
and  in  Venzie  v.  Parker,  23  Maine, 
170,  it  was  decided  that  the  attorn- 
ment of  a  tenant  holding  under  a 
grantor,  to  the  grantee,  would  not 
supply  the  want  of  registry,  because 
there  was  no  visible  change  of  posses- 
sion, to  indicate  that  there  had  been 
a  change  of  title.  There  is,  however, 
no  reason  to  doubt  that  the  notice 
implied  from  possession  will  go  to 
the  full  extent  of  the  right  of  the 
tenant,  and  affect  the  purchaser  with 
notice  of  any  covenant  for  renewal,  or 
for  the  conveyance  of  the  fee,  which 
may  be  contained  in  the  lease,  or 
in  a  separate  instrument;  Daniels  v. 
Davidson,  16  Vesey,  253;  17  Id. 
433;  Kerr  v.  Daij,  2  Harris,  112. 

The  presumption  of  notice  arising 
from  possession  may,  as  it  would  seem, 
be  rebutted  in  all  cases  by  proof,  that 
proper  efforts  were  made  without  suc- 
cess, by  inquiry  on  the  premises  and 
elsewhere,  to  ascertain  the  truth,  with- 
out being  successful ;  because  nothing 
more  can  be  required  from  a  purchaser 
under  any  circumstances,  than  the  use 
of  due  diligence,  in  accordance  with 
the  usual  course  of  business,  to  avoid 
infringing  on  the  rights  of  others 
while  exercising  his  own  ;  Williamson 
V  Brown,  15  New  York,  354,  361. 

Nothing  is  better  established  in  the 
doctrine  here  considered,  than  that  a 
purchaser  will  have  constructive  no- 
tice of  everything,  which  appears  in 
any   part    of    the    deeds    or    iustru- 


LE     NEVE     V.     LE     NEVE. 


169 


ments,  which  prove  and  constitute  the 
title  purchased,  and  is  of  such  a  na- 
ture that  if  brought  directly  to  his 
knowledge,  it  would  amount  to  actual 
notice.  For  the  right  of  a  purchaser 
can  in  no  case  go  beyond  his  own 
title,  and  whatever  appears  on  the 
face  of  the  title  papers,  forms  an  in- 
tegral part  of  the  title  itself;  Neale 
V.  Bagthrop,  3  Bland,  531,  586; 
Hagthrop  v.  Hook's  Administrators, 
1  Gill  &  J.  270 ;  Oliver  v.  Piatt,  3 
Howard,  333  ;  Mason  v.  Fayne,  Wal- 
ker's Ch.  459 ;  Johnston  v.  Gwath- 
meij,  4  Littell,  317 ;  Christmas  v. 
31itcheU,  3  Iredell,  Eq.  535;  Sigour- 
ney  v.  Mann,  7  Conn.  324.  Such 
notice,  therefore,  is  of  the  most  con- 
clusive nature,  and  is  insusceptible  of 
being  explained  away  or  rebutted; 
Nelson  V.  Allen,  1  Yerger,  360; 
Johnson  v.  Thwaett,  18  Alabama,  741 ; 
Graves  v.  Graves,  1  A.  K.  Marshall, 
165;  Honore' s  Executors  v.  Blahewell, 
6  B.  Monroe,  67 ;  Wailes  v.  Cooper, 
24  jy^ississippi,  208.  When,  there- 
fore, its  existence  appears  from  the 
documents  or  papers  accompanying 
the  answer,  it  will  overrule  a  positive 
denial  of  notice  in*he  answer  itself; 
Neale  v.  Hagthrop.  The  principle 
applies  to  every  instrument,  through 
which  the  title  of  the  purchaser  is 
deduced,  and  which  is  essential  to  its 
completeness.  A  party  who  claims 
under  a  devise,  will,  therefore,  be  held 
to  have  notice  of  every  clause  in  the  in- 
strument, which  has  any  bearing  on  the 
quality  or  duration  of  the  estate  devised 
to  him ;  Harris  v.  Fly,  7  Paige,  421 ; 
M'-Ateer  v.  M Mullen,  2  Barr,  32 ;  or 
which  confers  an  estate  or  right  upon 
others.  The  rule  is  the  same  with  regard 
to  grants  made  by  the  public,  as  to  those 
of  individuals,  and  a  party  claiming  a 


title  originating  in  a  patent  from  the 
state,  will  be  held  to  have  notice  of 
every  thing  that  appears  on  the  face 
of  the  patent ;  Bonner  v.  ^Yare,  10 
Ohio,  465;  Brushy.  Ware,  15  Peters, 
93,  111;  Urkett  v.  Coryell,  5  W.  & 
S.  60.  But  the  recitals  or  averments 
relied  on  as  making  out  a  case  of  no- 
tice of  this  description,  must  appear 
in  the  course  of  the  title  purchased, 
and  it  is  not  enough  to  show  their  ex- 
istence in  other  instruments,  although 
conveying  other  parts  of  the  same 
tract  of  land,  and  to  the  same  pur- 
chaser. In  Boggs  v.  Varner,  6  W. 
&  S.  469,  the  plaintiffs  gave  in  evi- 
dence a  deed  for  another  part  of  the 
lot,  for  which  they  had  brought  eject- 
ment, containing  a  description  of  the 
premises  as  bounded  by  land  conveyed 
to  them,  and  then  followed  it  up  with 
a  deed  from  the  grantee  in  the  first 
deed,  to  the  defendant,  for  the  pur- 
pose of  affecting  him  with  notice  of 
this  description,  and  through  it  of  the 
prior  conveyance,  to  which  it  referred. 
But  this  evidence  was  rejected  by  the 
court  on  the  ground,  that  as  the  deeds 
in  question  formed  no  part  of  the  title 
to  the  land  in  dispute,  they  could  not 
take  effect  as  constructive  notice,  and 
that  the  description  was  too  vague  and 
general,  to  be  submitted  to  the  jury 
as  evidence  of  actual  notice.  It  is 
well  settled,  moreover,  that  vague  and 
general  statements  wherever  made  or 
appearing,  cannot  operate  as  notice, 
and  that  to  make  recitals  in  title  pa- 
pers constructive  notice,  they  must 
be  of  such  a  nature,  that  if  communi- 
cated directly  to  the  purchaser,  they 
would  have  operated  as  actual  notice ; 
French  v.  The  Loyal  Company,  5 
Leigh,  627;  Lodge  v.  Simonton,  2 
Penna.  R.  439 ;  Bell  v.  Twilight,  2 


170 


NOTICE. 


Foster,    500.     And   it  was   held   in 
White  V.    Carpenter,  2  Paige,   217, 
249,  that  a  recifal  could  not  be  con- 
structive  notice,  unless  it   explained 
itself  by  its  own  terms,  or  by  reference 
to  some   deed  or  writing,  which  ex- 
plained it,  or  led  to  its  explanation. 
In   The  Hoioard  Ins.  Co.  v.  Ilaheij, 
4  Sanford,  427  ;  4  Selden,  271,  how- 
ever, a  reference  in  a  release  from  a 
mortgagee,  to  a  purchaser  from  the 
mortgagor,  to  the  deed  by  which  the 
mortgagor  had  conveyed,  was  held  to 
affect  the  releasor  with  notice  of  all 
that  might  have   been  learned   by  a 
careful  examination  of  the  deed,  and 
a  comparison  of  it  with  the  mortgage, 
notwithstanding  the  objection,  that  the 
deed  lay  outside  of  the  chain  of  his 
title,  and  that  the  reference  to  it  tend- 
ed  to   show  the   knowledge   of    the 
scrivener   by  whom   the  release  was 
drawn,  rather  than  that  of  the  party 
by  whom  it  was  executed.     The  re- 
lease was  of  part  of  the  land  covered 
by  the  mortgage ;  the  fact  presumed 
to   be  known,  that   the    residue  had 
been  previously  sold  by  the  mortgagor 
to  a  third  person ;  the  consequence  the 
loss  of   all    hold    on    the    mortgaged 
premises.     The  propriety  and  justice 
of  this  decision,  may  well  be  ques- 
tioned, and  it  should  not  be  followed 
without    mature    consideration.       If 
concessions    to    the    convenience   of 
debtors  are  made  too  dangerous,  credi- 
tors will  insist  on  the  extreme  rigor 
of  the  law  ;  and  although  a  purchaser 
may  be  justly  chargeable  with  notice 
of   every  thing    that  appears  on  the 
face  of  the   papers  which  constitute 
the   title   purchased,  a   releasor   can 
hardly  be  supposed  to  be  acquainted 
with  the  contents  of  all  the  deeds  re- 
ferred to  in  the  instrument  of  release, 


which  may  have  been  prepared  by 
third  persons,  and  which  he  need  not 
examine  further  than  is  necessary  to 
ascertain,  that  it  does  not  relinquish 
more  than  he  is  prepared  to  abandon. 
What  appears  in  the  deed  from  the 
vendor  to  the  purchasei',  must  in  gen- 
eral be  proof  both  of  actual  and  con- 
structive notice;  Hackwith  v.  Dam- 
ro«,  1  Monroe,  237 ;  Knouffv.  Thomp- 
son, 4  Harris,  357,  364;  Kerr  v. 
Kitchen,  5  Id.  438;  and  may,  there- 
fore, extend  its  operation  to  sub- 
sequent transactions.  Thus  the  as- 
signment of  a  mortgage  for  purchase- 
money,  has  been  held  to  affect  the  as- 
signee with  notice  of  the  sale,  and 
thus  preclude  him  from  releasing  an- 
other lot  of  ground  from  the  lien  of  a 
prior  encumbrance,  to  the  prejudice 
of  the  right  acquired  by  the  pur- 
chaser; Guion  V.  Knapp,  6  Paige,  35. 
And  where  a  conveyance  is  taken  of 
one  moiety  of  a  lot  of  ground,  in  which 
the  existence  of  an  encumbrance  is 
distinctly  set  forth,  the  notice  thus 
given  will  attach  to  a  subsequent  con- 
veyance of  the  other  moiety,  in  which 
the  encumbrance  is  not  mentioned; 
Bellas  v.  Lloyd,  ^  Watts,  401.  This 
decision  seems  to  show,  that  the  gen- 
eral rule  that  notice  must  be  in  the 
same  transaction,  Sugden  on  Vendors, 
vol.  3,  p.  452,  pi.  5,  is  applicable  to 
cases  of  constructive  notice,  rather 
than  actual ;  Farnesicorth  v.  Childs, 
4  Mass.  437. 

A  purchaser  will  also  be  affected 
with  constructive  notice,  whenever 
his  purchase  is  made  during  the  pro- 
secution of  a  suit  brought  to  enforce 
an  adverse  claim  or  title,  which  is  set 
forth  with  sufficient  certainty  and  dis- 
tinctness, to  apprise  him  of  its  bearing 
on  the  property  purchased.    This  doc- 


LE     NEVE     V.     LE     NEVE. 


171 


trine  seems  to  have  originated  in  a 
rule  of  policy  growing  out  of  the  pecu- 
liar jurisdiction  of  the  Court  of  Chan- 
cery, which  acting  only  upon  the  con- 
science and  personal  obligation  of  the 
defendant,  will  be  defeated  by  the 
alienation  of  the  property  in  contro- 
versy, unless  the  purchaser  can  be 
affected  with  notice,  and  thus  made 
equitably  liable  to  restore  what  he  has 
purchased.  And  it  obviously  can 
have  little  application  to  suits  brought 
at  common  law,  where  no  action  not 
founded  on  estoppel,  can  be  sustained 
for  the  recovery  of  real  estate,  unless 
the  title  of  the  plaintiff  is  absolutely, 
as  well  as  relatively  good,  and  where 
the  sale  of  the  land  can  have  no  effect 
on  the  rights  of  the  parties.  In 
this  country,  however,  the  construc- 
tion put  on  our  recording  acts,  under 
which  a  title  legally  good  as  against  a 
purchaser  with  notice,  may  be  defeated 
by  a  sale  to  a  purchaser  without  no- 
tice, must  give  the  effect  of  lis  pen- 
dens, as  notice,  a  much  wider  scope 
than  in  England,  unless  it  can  be  con- 
fined in  its  operation  by  the  salutary 
principle  asserted  in  some  of  the  cases, 
that  notice  merely  constructive  shall 
not  be  allowed  to  defeat  a  title  sup- 
ported by  a  deed  duly  recorded. 

The  doctrine  that  a  lis  jicndens  is 
notice,  was  established  in  this  country 
as  a  doctrine  of  equity,  by  the  cases  of 
3Iurrai/  v.  Ballou,  1  Johnson,  Chan- 
cery, 566 ;  Murray  v.  Finster,  2  Id. 
155,  and  Heathy  v.  Finster,  lb.  158, 
where  a  bill  filed  against  a  trustee, 
charging  him  with  a  breach  of  trust, 
and  praying  an  injunction  against  his 
acting  further  in  the  sale  or  disposi- 
tion of  the  property,  was  held  to  be 
constructive  notice  to  the  defendant, 
who  had  purchased  property  embraced 


in  the  trust,  after  the  suit  was  insti- 
tuted against  the  trustee.  ''  Admit- 
ting," said  Chancellor  Kent,  "  that 
the  defendant  had  no  knowledge,  in 
fact,  of  the  suit  of  Mrs.  Green  against 
Winters  when  he  made  the  purchase, 
he  is,  nevertheless,  chargeable  with 
legal  or  constructive  notice,  so  as  to 
render  his  purchase  subject  to  the 
event  of  that  suit.  The  established 
rule  is,'  that  a  lis  pendens,  duly  prose- 
cuted, and  not  collusive,  is  notice  to 
a  purchaser  so  as  to  affect  and  bind 
his  interest  by  the  decree ;  and  the  lis 
2)endens  begins  from  the  service  of  the 
subpoena  after  the  bill  is  filed. 

The  counsel  for  the  defendants  have 
made  loud  complaints  of  the  injustice 
of  this  rule,  but  the  complaint  was  not 
properly  addressed  to  me,  for,  if  it  is 
a  well  settled  rule,  I  am  bound  to 
apply  it,  and  it  is  not  in  my  power  to 
dispense  with  it.  I  have  no  doubt 
the  rule  will  sometimes  operate  with 
hardships  upon  a  purchaser  without 
actual  notice;  but  this  seems  to  be 
one  of  the  cases  in  which  private  mis- 
chief must  yield  to  general  conveni- 
ence ;  and,  most  probably,  the  neces- 
sity of  such  a  hard  application  of  the 
rule  will  not  arise  in  one  out  of  a 
thousand  instances.  On  the  other 
hand,  we  may  be  assured,  the  rule 
would  not  have  existed,  and  have  been 
supported  for  centuries,  if  it  had  not 
been  founded  in  great  public  utility. 
Without  it,  as  has  been  observed  in 
some  of  the  cases,  a  man,  upon  the 
service  of  a  subpoena,  might  alienate 
his  lands,  and  prevent  the  justice  of 
the  court.  Its  decrees  might  be 
wholly  evaded.  In  this  very  case,  the 
trustee  had  been  charged  with  a  gross 
breach  of  his  trust,  and  had  been  en- 
joined by  the  process  of  the  court,  six 


172 


NOTICE. 


months   before  tlie  sale  in  question, 
from  any  further  sales.     If  his  subse- 
quent sales  are  to  be  held  valid,  what 
temptation  is   held  out  to  waste  the 
trust   property,    and   destroy  all   the 
hopes  and  interest  of  the  cestui  que 
trust?      A   suit   in    chancery  is,    in 
such    cases,    necessarily  tedious   and 
expensive,  and  years  may  elapse,  as 
in  this  case,  before  the  suit  can  be 
brought   to   a   final    conclusion.      If 
the    property   is    to   remain    all    this 
time   subject   to   his   disposition,    in 
spite  of  the  efi'oi'ts  of  the  court  to  pre- 
vent it,  the    rights  of  that    helpless 
portion  of  the  community,  whose  pro- 
perty is  most  frequently  held  in  trust, 
will  be  put  in  extreme  jeopardy.     To 
bring   home   to    every   purchaser  the 
charge  of  actual   notice  of  the  suit, 
must,  from    the   very  nature  of  the 
case,  be  in  a  great  degree  impracti- 
cable.    The    only   safe    and    efficient 
means  of  preventing  such  fraud  and 
injustice,  is  to  charge  the  purchaser 
with  dealing  with  the  trustee  at  his 
peril.     The  policy  of  the  law  does,  in 
general,  cast  that  peril  upon  the  pur- 
chaser.     Caveat  emptor,  is  the  settled 
maxim  of  the  common  law.     It  is  his 
business  to  inquire  and  to  look  to  the 
person   with  whom  he  deals.     If  he 
knows  him  to  be  a  trustee,  then  let 
him  inquire  of  the  cestui  que  trust,  or 
let   him    ask  at  the  register's  office, 
whether   there   be  any  suit  pending 
against  such  trustee.     He  can  always 
be  safe  if  he  uses  due  diligence,  but 
the  other  party  has  no  means  of  safety 
beyond  his  application  to  the  court. 
Whatever  may  be  thought  of  the  rule, 
it  appears  to  me  to  be  less  severe  than 
that  acknowledged  rule  of  the  com- 
mon law,  on  which  our  courts  have 
repeatedly   acted,  that  a  conveyance 


of  laud,  without  any  warranty  or  cove- 
nant of  title,  will  not  enable  the  pur- 
chaser to  resort  back  to  the  seller, 
even  if  the  title  should  fail ;  (Frost  v. 
Raymond,  2  Gaines's  Rep.  188  j) 
and  if  he  has  covenants  to  secure  his 
title,  he  can  seek  for  no  more  than 
the  consideration  which  he  has  paid, 
without  any  allowance  for  the  rise  in 
value  of  the  land,  or  the  value  of  the 
improvements ;  (^Pitcher  v.  Livingston^ 
4  Johnson,  Rep.  1.") 

The  doctrine  laid  down  in  these 
cases,  appears  to  be  generally  adopt- 
ed throughout  the  United  States, 
by  courts  of  equity;  Grijfith  v.  Gri/- 
JitJi,  1  Hoffman,  153  ;  Jackson  v. 
Ketcham,  8  Johnson,  479 ;  Har- 
ris V.  Carter's  Adm'rs,  3  Stewart, 
233  ;  Tongue  v.  Morton,  6  Harris  & 
Johnson,  21;  Owings  v.  Myers,  3 
Bibb,  279 ;  Jackson  v.  Andrews,  7 
Wend.  152 ;  Chapman  v.  West,  17 
New  York,  R.  125  ;  Walher  v.  Butz, 
1  Yeatcs,  574 ;  Hersey  v.  Turhett,  3 
Casey,  428;  Chandron  v.  Magee,  8 
Alabama,  578 ;  Carter  v.  The  Bank, 
22  Id.  743;  Whiting  v.  Beebe,  7  Eng- 
lish, 5G4 ;  Ashley  v.  Cunningham,  IG 
Arkansas,  168 ;  Gilman  v.  Hamilton, 
IG  Illinois,  225;  Inloe's  Lessee  v.  Har- 
vey, 11  Maryland,  519  ;  Harrington  v. 
Slade,  22  Barb.  16G ;  Pratt  v.  Hoag, 
5  Duer,  G31 ;  Hersey  v.  Turhett,  3 
Casey,  418  ;  and  by  courts  of  law  when 
acting  on  and  enforcing  equitable  prin- 
ciples ;  and  in  Hersey  v.  Turhett,  an 
ejectment  brought  for  the  purpose  of 
enforcing  an  equity,  in  accordance 
with  the  course  of  practice  in  Pennsyl- 
vania, was  held  to  be  a  Us  pendens, 
which  charged  a  purchaser  from  the  de- 
fendant with  notice.  It  was  held,  not- 
withstanding, in  Neicman  v.  Chap- 
man, 2  Randolph,  93,  that  the  doc- 


LE     NEVE     V.     LE     NEVE. 


173 


trine  of  lis  jjendejis  is  not  applicable 
in  cases  arising  under  the  operation 
of  the  recording  acts,  and  the  same 
position  was  taken  in  The  City  Council 
V.  Page,  1  Speer's  Eq.  159,  212, 
on  the  authority  of  Wyatt  v.  Barwell. 
But  in  Carter  v.  The  Bank,  22  Ala- 
bama, 743,  the  point  was  decided  the 
other  way,  and  a  judgment  postponed 
to  an  unrecorded  mortgage,  on  the 
ground  that  a  bill  had  been  filed  to 
foreclose  the  mortgage  before  the 
judgment  was  rendered. 

In  Murray  Y.  Lylhurn,  2  Johnson, 
Chancer}^,  444,  the  principles  asserted 
in  Murray  v.  Ballou  were  held  to 
apply  to  choses  in  action,  as  well  as 
to  real  estate,  and  to  entitle  a  cestui 
que  trust,  whose  land  had  been  fraud- 
ulently disposed  of  by  the  trustee 
during  a  suit  brought  to  establish  the 
trust  against  the  latter,  not  merely  to 
the  land  itself,  but  to  the  mortgages 
or  securities  taken  for  the  purchase- 
money,  against  purchasers  or  assig- 
nees claiming  title  under  sales  or  as- 
signments, made  while  the  suit  was 
pending.  And  there  are  several  cases 
which  sustain  the  idea,  that  whenever 
personal  property  falls  within  the  ju- 
risdiction of  chancery,  by  becoming 
the  subject  of  a  suit  for  specific  delivery 
or  performance,  (ante,  vol.  1,  756,)  it 
will  fall  within  the  rules  which  apply  un- 
der similar  circumstances  to  land,  and 
cannot  be  discharged  from  the  equity 
of  the  complainant  by  a  ?,iy\Q  pendente 
lite;  Scudder  v.  Va7i  Amburgh,  4 
Edwards,  29  j  Boiling  v.  Carter,  9 
Alabama,  770;  Shelton  v.  Johnson,  4 
Sneed,  672.  In  Houstonv.  West/eldt, 
22  Alabama,  761,  however,  the  court 
treated  the  point  as  doubtful,  and  said 
that  whatever  the  rule  might  be  with 
reference  to  ordinary  chattels,  money, 


and  negotiable  securities,  which,  like 
money,  pass  by  delivery  from  hand, 
were  beyond  the  restriction  imposed 
by  the  existence  of  a  lis  pendens. 

The  constructive  notice  arising  from 
the  pendency  of  a  suit,  is  subject  to 
those  limitations  which  apply  to  the 
doctrine  of  notice  generally,  and  which 
are  necessary  to  its  proper  and  health- 
ful operation.  Notice,  whether  ap- 
pearing among  the  papers  or  records 
of  a  court,  or  in  any  other  manner, 
must  be  sufficiently  certain  to  give 
the  means  of  distinct  and  intelligible 
information  of  the  matter  to  which  it 
relates;  Lodge\.  Simonton,  2  Penna. 
449,  ante.  Hence,  a  purchaser  will  not 
be  aflPected  with  notice,  by  a  bill 
charging  the  vendor  with  a  general 
misapplication  of  the  property  of  the 
complainant,  without  specifying  of 
what  that  property  consisted  ;  Griffith, 
v.  Griffith,  1  HoflTman,  153.  And 
in  Lewisv.  Mew,  1  Strobhart,  Equity, 
180,  it  was  decided  that,  to  make  a 
lis  pendens  notice  to  a  purchaser,  there 
must  be  something  in  the  pleadings, 
at  the  date  of  the  purchase,  to  direct 
his  attention  to  the  property  pur- 
chased, as  being  identical  with  that 
which  is  in  litigation.  It  was  held, 
notwithstanding,  in  Green  \.  Slay ter, 
4  Johnson,  Ch.  38,  that  an  averment 
in  a  bill  that  divers  lands  in  Cosby 
manor  were  held  in  trust  for  the  com- 
plainant, was  sufficient  to  aifect  a  pur- 
chaser from  the  trustee,  with  notice, 
although  there  was  nothing  on  the 
face  of  the  bill  to  indicate  to  what 
part  of  the  various  tracts  of  land  com- 
posing the  manor  the  trust  related. 
But  it  was  at  the  same  time  decided, 
that  the  notice  aflforded  by  a  bill  can- 
not be  extended  by  implication,  to 
matters   not   appearing   on   its   face, 


174 


NOTICE. 


even  when  tlieir  existence  might 
have  been  inferred  from  the  facts 
which  it  actually  sets  forth,  and  there- 
fore, that  a  bill  filed  against  a  trustee, 
charging  him  with  a  breach  of  trust, 
by  the  fraudulent  sale  of  part  of  the 
trust  property,  and  praying  an  injunc- 
tion against  any  further  sale,  or  any 
assignment  of  the  land,  or  securities 
belonging  to  the  trust,  did  not  affect 
the  right  of  a  prior  purchaser  to  pay 
off  the  bonds  which  he  had  given  for 
the  purchase-money,  either  to  the 
trustee  himself,  or  to  an  assignee  un- 
der him  ;  the  ground  of  decision  being 
that  the  relief  prayed  by  the  bill,  ex- 
tended only  to  the  assignment  of  the 
debts  due  to  the  trust,  and  not  to  their 
collection. 

In  general,  the  operation  of  a  lis 
pendens  as  notice,  will  not  extend  be- 
yond the  specific  property,  which  the 
complainant  seeks  to  charge  or  affect 
with  the  equity  of  the  bill.  But  the 
institution  of  a  suit  by  the  purchaser, 
of  part  of  a  tract  of  land  covered  by 
a  mortgage,  for  specific  performance 
against  the  seller,  will,  it  seems,  ope- 
rate as  notice  to  subsequent  purchasers 
of  the  residue  of  the  laud,  because  the 
existence  of  the  mortgage  makes  it 
their  duty  to  search  the  record  for  the 
purpose  of  ascertaining  whether  any 
act  has  been  done  of  a  nature  to  shift 
the  burdep  of  the  mortgage,  and  throw 
the  whole  upon  one  portion  of  the  mort- 
gaged premises  in  exoneration  of  the 
rest ;  Chapman  v.  West,  17  New  York, 
R.  124:, post,  note  to  Aklrich  v.  Cooper. 

The  effect  of  lis  pendens  as  notice, 
is,  moreover,  coupled  with  some  qua- 
lifications, peculiar  to  itself.  Every 
species  of  notice  is  ineffectual  as  a  re- 
straint on  existing  rights,  and  can 
only  operate  on  those  which  are  sub- 


sequently acquired.  But  the  institu- 
tion of  a  suit  for  the  recovery  of  a 
specific  property  or  demand,  is  notice 
only  to  those  who  acquire  an  interest 
in  the  subject-matter  in  controversy 
after  the  suit  is  instituted,  and  by 
purchase  or  grant  from  the  parties  or 
privies ;  French  v.  The  Loycd  Co.,  5 
Leigh,  627 ;  Stuyvesant  v.  Hone,  1 
Sanford,  Ch.  419;  Stuyvesant  v.  Hall, 
2  Barbour,  Ch.  151.  Although  this 
limitation  was  not  directly  applied  by 
Chancellor  Kent,  in  the  cases  above 
cited,  yet  it  necessarily  results  from 
the  language  of  his  decisions,  and  the 
points  actually  decided,  which  arose 
out  of  sales  made  by  a  trustee 
of  trust  property,  after  a  suit  had 
been  instituted  to  restrain  him  from 
selling.  And  it  has  been  uniformly 
enforced  in  the  subsequent  course  of 
decision.  Thus  it  was  held  in  White 
v.  Carpenter,  2  Paige,  217,  that  a  bill 
filed  to  establish  a  title  to  an  estate 
against  one  man,  would  not  operate 
as  notice  to  a  purchaser  of  the  same 
estate  from  another  :  and  in  Stuyve- 
sant Y.  Hone,  1  Sandford,  Ch.  419; 
2  Barbour,  Ch.  151,  that  a  fore- 
closure suit,  instituted  by  a  mort- 
gagee, would  not  affect  a  prior  encum- 
brancer with  notice  of  the  mortgage. 
And  in  Parks  v.  Jackson,  11  Wend. 
442,  it  was  held  by  the  Court  of  Er- 
rors, that  the  institution  of  a  suit  was 
not  notice  to  a  prior  purchaser,  who 
had  gone  into  possession  and  made 
expenditures  on  the  faith  of  the  pur- 
chase, although  the  deed  was  not 
executed  until  after  the  institution 
of  the  suit.  This  decision,  which 
was  put  on  the  ground  that  a  man 
who  is  in  possession  of  land  under  a 
claim  of  title,  cannot  be  concluded 
by  a  suit  to  which  he  is  not  a  party, 


LE     NEVE     V.     LE     NEVE. 


175 


would  seem  obviously  just,  although 
made  in  opposition  to  the  opinion  of 
the  judges  of  the  Supreme  Court, 
and  of  the  chancellor.  The  same  point 
was  decided  by  the  Supreme  Court  of 
Ohio,  in  Trimble  v.  Boothbij,  14  Ohio, 
109,  and  Glhler  v.  Trlmhle,  lb.  323. 

It  results  moreover  from  the  defini- 
tion of  notice  by  Us  j^endens,  that  it 
cannot  continue  after  a  final  decree  or 
judgment,  which  necessarily  puts  an 
end  to  the  pendency  of  the  suit  which 
constitutes  the  notice ;  Price  v.  White, 
1  Bailey,  Equity,  234 ;  Blake  v.  Rcj/- 
ward,  lb.  208 ;  Turner  v.  Crehill,  1 
Ohio,  374  ;  although  no  decree  can  be 
final,  in  this  sense  of  the  word,  which 
is  liable  to  be  reversed  on  appeal  by  a 
higher  tribunal,  unless  a  sufl&cient  in- 
terval has  elapsed  to  warrant  the  be- 
lief that  the  unsuccessful  party  has 
abandoned  his  claim,  or  does  not 
mean  to  press  it  further ;  Dohell  v. 
Foxwortliy,  9  B.  Monroe,  228.  And 
as  the  jurisdiction  of  equity  ordinarily 
binds  the  parties,  and  does  not  extend 
to  the  subject-matter  in  controversy,  a 
decree  establishing  the  title  of  the 
plaintiff,  and  directing  a  conveyance 
by  the  defendant,  will  not  ordinarily 
be  a  protection  against  a  subsequent 
purchaser  from  the  latter;  Winhorn 
v.  Gorrell,  3  Iredell's  Equity,  117. 
This  decision  illustrates  the  distinc- 
tion between  law  and  equity;  a  judg- 
ment generally  affording  a  sufficient 
protection  at  law,  after  the  suit  is  ter- 
minated, by  operating  as  an  estoppel, 
and  binding  the  estate  as  well  as  the 
parties. 

It  has  also  been  said,  that  the  disabi- 
lity attached  to  purchasers  pendente 
lite,  is  limited  to  the  purposes  of  the 
suit  itself,  and  therefore  ceases  as  soon 
as  the  suit  expires,  unless  it  is  prose- 


cuted to  a  successful  issue  ;  and  that 
a  purchaser  consequently  cannot  be 
charged  in  one  proceeding  on  the 
ground  that  he  bought  during  the 
pendency  of  another,  even  when 
both  are  founded  upon  the  same  equi- 
ty ;  Newman  v.  Chapman,  2  Ran- 
dolph, 102;  French^.  The  Loyal  Co., 
5  Leigh,  627,  681 ;  although  this  rule 
is  not,  as  it  would  seem,  applicable, 
when  a  suit  which  has  been  abated  by 
death,  is  duly  revived  and  prosecuted 
subsequently,  because  the  whole  then 
relates  back  to  its  origin,  and  forms, 
in  fact,  but  one  proceeding;  Ashley 
V.  Cunningham,  16  Arkansas,  168. 

It  would  seem  to  be  plain,  that  a  lis 
p>endens  cannot  operate  as  notice  to 
parties  who  reside  beyond  the  juris- 
diction of  the  court  in  which  the  suit 
is  brought,  even  when  the  property  in 
question  lies  directly  within  the  juris- 
diction, and  the  question  arises  under 
the  Constitution  of  the  United  States, 
which  gives  the  proceedings  of  the 
court  of  each  State  full  faith  and 
credit  in  every  other;  Shelton  v.  John* 
son,  4  Sneed,  672. 

The  protection  afibrded  by  the  in- 
stitution of  a  suit,  against  the  inter- 
vention of  the  claims  of  purchasers, 
may,  also,  be  lost  before  it  is  termi- 
nated, by  negligence  in  its  prosecu- 
tion. Thus,  in  Gihler  v.  Trimble, 
14  Ohio,  323 ;  Trimble  v.  Boothby, 
lb.  109 ;  and  Price  v.  McDonald,  1 
Maryland,  403,  412,  it  was  decided, 
that  to  render  a  suit  notice  to  third 
persons  who  are  not  parties,  it  must 
be  closely  and  continuously  prosecut- 
ed, and  that  after  it  has  been  allowed 
to  slumber  during  a  number  of  years, 
it  cannot  be  aroused  into  activity  for 
the  purpose  of  defeating  a  title  ac- 
quired in  good  faith,  without  actual 


176 


NOTICE. 


notice  of  its  existence,  or  of  the  claim 
on  which  it  is  founded.     This  is  strik- 
ingly illustrated  by  the  decision  of  the 
Court  of  Appeals  of  Kentucky,  in  the' 
case  of   Watson  v.    Wilsoii,   2  Dana, 
406.     It  there  appeared,  that  a  bill 
had  been  filed  against  one  Benbrooks, 
to  set  aside  a  conveyance  of  land  to 
him  as  fraudulent  against  creditors. 
This  suit  abated  by  the  death  of  Ben- 
brooks,  and  was  not  revived  until  more 
thau  two  years  afterwards.      During 
this  interval  the  land  was  purchased 
from  the  heirs  by  the  defendant,  and 
it  was  sought  to  invalidate  this  pur- 
chase, as  made  pendente  lite.     But  it 
was  held  by  the  court,  that  as  the  suit 
had  abated  at  the  time  of  the  pur- 
chase, and  proper  steps  had  not  been 
taken  for  its  revival,  the  purchaser 
could  not  be  charged  with  notice.    In 
delivering  the  opinion  of  the  court, 
Nicholas,  J.,  held  the  following  lan- 
guage :  "  It  is  said  by  several  writers, 
that  ia  order  to  affect  a  purchaser,  there 
must  be  a  close  and  continued  prose- 
cution of  the  lis  pendens.     This  has 
been  said,  as  is  presumed,  mainly  upon 
the  authority  of  Preston  v.  Tuhin,  1 
Vern.  28G,  as  no  other  case  is  found 
cited  in  support  of  the  doctrine,  or  in 
which   it  has    been   distinctly   acted 
upon.     In  that  case  there  is  an  ob- 
servation, that  there  ought  to  be  a  close 
and  continued  prosecution  of  the  lis 
pendens :  but  it  seems  to  be  the  ob- 
servation of  the  reporter  merely,  made 
for  the  purpose  of  indicating  what  the 
case  decides.     But  the  case  decides 
nothing  more,  than  that  the  pendency 
of  a  suit  at  the  time  of  the  purchase, 
does  not  affect  the  purchaser  with  no- 
tice in  any  new  suit,  the  first  having 
been  dismij-scd  or  discontinued,    liord 
Bacon's  rule,  which  probably  was  the 


fountain  of  all  this  doctrine,  by  re- 
quiring that  the  suit  should  be  in  full 
prosecution  at  the  time  of  the  pur- 
chase, would  seem  to  intimate,  that 
there  is  a  degree  of  intermission  in 
such  prosecution,  which  will  deprive 
the  complainant  of  the  protection  of 
the  rule.     All  the  writers  concur  in 
this  idea;  but  what  degree  of  inter- 
mission will  have  this  effect,  it  is  im- 
possible to  ascertain  from  theni,  with 
any  distinctness.     In  a  case  decided 
by  Lord  Clarendon,  and  cited  with  ap- 
probation by  Lord   Nottingham,  the 
bill  was  filed  in  1640,  abated  by  a 
death  in  1648,  the  purchase  made  in 
1661,  and  the  bill  of  revivor  not  filed 
till  1662  ;  still  the  purchaser  was  held 
bound.     But  this  case,  when  subse- 
quently cited,  has  been  accompanied 
with  the  indication  of  decided  disap- 
probation ;  and  Mr.  Sugden  says,  it 
was  attended  with  circumstances,  that 
strip  it  of  all  character  as  an  authori- 
ty upon  the  point  in  question.     The 
case  was  cited  by  Sir  William  Grant, 
in    Winchester  v.  Faine,  11  Ves.  200, 
to  show  Lord  Nottingham's  opinion, 
that  it  made  no  difference,  though  the 
purchase  was  during  an  abatement  of 
the  suit,   if  afterwards  revived   and 
prosecuted  to   a  decree,  but  at  the 
same  time  he  gave  it  as  his  own  opi- 
nion, that  in  such  case,  there  would 
be  great  difiiculty  in  holding  the  pur- 
chaser   bound ;     without,     however, 
suggesting  any  reason  for  such  diffi- 
culty, Mr.  Sugden,  after  noticing  this 
intimation  of  opinion,  suggests,  'that 
if  ever  the  point  should  call  for  a  de- 
cision, it  will  probably  turn  upon  the 
question,   whether  the   plaintiff   was 
guilty  of  laches  in  reviving  the  suit.'  " 
It  was   held  by  Lord  Redesdale, 
that  a  purchase  made  after  the  dis- 


LE     NEVE     V.     LE     NEVE. 


177 


missal  of  a  bill,  was  subject  to  the  final 
disposition  of  the  cause  in  the  House 
of  Lords,  provided  an  appeal  was  af- 
terwards taken,  and  such  is  the  re- 
ceived doctrine  in  England.  We  per- 
ceive no  satisfactory  reason,  why  a 
purchaser  during  the  temporary  abate- 
ment of  a  suit,  should  not  be  affected 
in  the  same  way.  A  suit  like  this, 
can,  with  equal,  if  not  greater  pro- 
priety, be  said  to  be  pending,  after  an 
abatement  by  death,  than  after  de- 
cree and  before  appeal  in  England, 
or  writ  of  error  in  this  country.  The 
question  seems  properly  resolvable,  as 
suggested  by  Sugden,  into  an  inquiry 
whether,  the  complainant  was  guilty 
of  culpable  negligence  in  reviving  his 
suit. 

As  to  the  negligence  objected  to  in 
this  case,  we  are  not  prepared  to  say, 
nor  does  our  experience  of  the  ordi- 
nary progress  of  a  chancery  suit  in 
this  state,  authorize  us  in  saying,  that 
from  May,  1825,when  the  subpoena  was 
served,  till  April,  1828,  when  Watson 
obtained  his  deed,  there  was  that  lapse 
of  time,  which  unexplained,  would, 
of  itself,  amount  to  such  laches,  as  to 
deprive  the  complainant  of  the  bene- 
fit of  the  rule. 

But  the  delay  in  reviving  the  suit 
of  nearly  two  years,  to  the  time  when 
Watson  completed  his  purchase,  and 
of  more  than  two  years  to  the  time  of 
revivor,  without  any  step  taken  to- 
wards a  revivor,  and  without  any  ex- 
planation or  excuse  shown  for  the  de- 
lay, is  of  a  different  character.  If  such 
a  delay  for  two  years,  does  not  need  ex- 
planation, we  should  have  much  difii- 
culty  in  saying  what  length  of  delay 
would  require  it.  No  satisfactory  rea- 
son suggests  itself,  for  saving  it  from 
the  inculpation  of  gross  and  wilful  neg- 

VOL.  II. — 12 


ligenee.  We  are,  therefore,  bound  to 
say  that  there  was  not  such  a  prosecu- 
tion of  Wilson's  suit,  as  entitles  him  to 
the  protection  of  the  rule,  and  that  his 
decree  and  purchase  under  it,  cannot 
be  permitted  to  overreach  and  avoid 
the  conveyance  to  Watson.  The  rule, 
though  necessary  and  indispensable, 
has  ever  been  deemed  harsh  and 
rigorous,  in  its  operation  against  hona 
fide  purchasers,  and  it  is  said,  that, 
in  England,  if  the  complainant  make 
a  slip  on  his  proceedings,  the  court 
will  not  assist  him  to  rectify  the  mis- 
take. We  deem  it  strictly  proper, 
that  he  should  be  held  to  something 
like  reasonable  diligence  in  the  pro- 
secution of  his  suit,  to  entitle  himself 
to  the  protection  of  the  rule." 

This  decision  was  cited  with  appro- 
bation in  Dohell  v.  Foxicorthy,  4  Dana, 
95 ;  9  B.  Monroe,  228 ;  where  the  court 
expressed  the  opinion,  that  in  the  ab- 
sence of  negligence,  the  notice  derived 
from  a  lis  pendens,  would  survive  an 
abatement  of  the  suit  by  the  death  of 
the  complainant,  or  even  its  termi- 
nation in  the  court  where  it  was  in- 
stituted, by  a  decree  against  him,  and 
invalidate  the  title  conveyed  to  a  pur- 
chaser who  had  bought  in  the  interval 
between  such  a  decree,  and  its  re- 
versal on  appeal,  by  a  higher  tribunal. 

The  recording  acts  of  this  country 
are  in  general  limited  in  terms  to  de- 
claring, that  unregistered  deeds  shall 
be  void  as  against  creditors  and  sub- 
sequent purchasers,  or  as  against  pur- 
chasers only.  And  it  is  well  settled 
in  England,  that  the  operation  of  these 
acts  does  not  extend  beyond  this,  nor 
render  the  record  of  a  deed,  construc- 
tive notice  of  its  existence  and  con- 
tents ;  Wiseman  v.  Westland,  1  Y.  & 
J.    117 ;    Underwood  v.  Lord  Coxir- 


178 


NOTICE. 


toicn,  2  Sch.  &  Lefroy,  40;  ante;  see 
Hodgson  v.  Dean,  2  Simons  &  Stuart, 
221 ;  Busliell  v.  Bushell,  1  Scho.  & 
Lefroy,  103. 

This  interpretation  seems  reasona- 
ble in  itself,  if  not  in  its  consequen- 
ces, for  it  is  not  easy  to  understand 
why  a  legislative  enactment,  that  a 
deed  shall  be  void  against  a  purchaser 
if  unregistered,  should  be  read  as 
meaning  anything  more,  than  that  if 
properly  registered,  it  shall  have  the 
same  effect  that  it  would  have  had  apart 
from  the  enactment.  The  plain  mean- 
ing of  the  registry  acts,  said  Lord 
Redesdale,  in  Underwood  v.  Lord 
Courtown,  would  seem  to  have  been  to 
give  priority  to  instruments,  whether 
they  convey  a  legal  or  equitable  estate, 
according  to  the  priority  of  their  re- 
gistry, but  still  according  to  the 
rights,  titles  and  interests  of  the  per- 
sons conveying.  This  reasoning  seems 
as  applicable  in  this  country  as  in 
England,  and  was  fully  adopted  in 
the  case  of  Doswell  v.  Buchanan's 
Executora,  3  Leigh,  365.  But  the 
necessary  result  of  such  a  construc- 
tion, is  to  leave  conveyances  of  mere 
equities,  on  the  same  footing  as  at 
common  law,  that  is,  without  any  pro- 
tection against  a  subsequent  convey- 
ance of  the  legal  estate,  without  other 
notice  than  that  derived  from  the  re- 
gistry ;  Morecock  v.  Dichens,  Ambler, 
678.  And  to  obviate  this  inconve- 
nience, it  is  generally  held  with  us, 
that  a  deed  duly  registered  is  con- 
structive notice  of  its  contents,  to  all 
persons  claiming  any  title  held  by  the 
grantor  when  it  was  executed,  and 
under  a  conveyance  subsequent  to  the 
period  of  registry ;  Joliason  v.  Stagg, 
2  Johnson,  510;  Wardell  v.  Wads- 
worth,  20  Id.  0G3  ;   Parkist  v.  Alex- 


ander,  1  Johnson,  Ch.  394;  Berry 
v.  The  Mutual  Ins.  Co.,  2  Id.  603  ; 
James  v.  Morey,  2  Cowen,  216 ; 
Schiift  V.  Large,  6  Barbour's  S.  C. 
K.  373 ;  Knouff  v.  Thompson,  4 
Harris,  357;  M'Mechan  v.  Griffing, 
3  Pick.  11 ;  Shaio  v.  Poor,  6  Id.  86  ; 
Cushing  v.  Ayer,  25  Maine,  383 ; 
Irvin  V.  Smith,  17  Ohio,  226 ;  Mar- 
tin V.  Sale,  1  Bailey's  Equity,  1.  An 
opposite  construction,  which  prevailed 
at  one  time  in  Virginia,  Dosicell  v.  Bu- 
chanan^ s  Executors,  3  Leigh,  362,  has 
since  been  done  away  with  by  an  ex- 
press statutory  declaration  ;  Siter  v. 
jWClanachan,  2  G rattan,  280,  304. 

It  was  indeed  said,  in  Grimstone 
V.  Carter,  3  Paige,  421,  that  equi- 
ties were  not  within  the  recording 
acts,  and  consequently  need  not  be 
recorded  ;  which  carries  with  it  the 
corrollary  that  the  record  will  not  be 
notice  if  made;  and  the  law  was  so  held 
in  Walker  v.  Gilbert,  1  Freeman,  Ch. 
25,  but  we  may  doubt  the  wisdom  of 
any  course  of  decision  which  tends 
to  exempt  any  estate  or  interest  in 
land,  from  the  operation  of  a  system, 
which  derives  its  chief  value  from  its 
universality,  and  which  should  either 
be  laid  aside  altogether,  or  carried 
sufficiently  far  to  afford  a  faithful 
transcript  of  the  title  to  land,  and 
furnish  a  safe  guide  to  purchasers. 

No  presumption  of  notice  arises 
from  the  record  of  an  instrument, 
unless  it  is  recorded  by  authority  of 
law,  and  unless  that  authority  has 
been  duly  and  fully  pursued;  Till- 
man V.  Cowand,  12  Smedes  &  Mar- 
shall, 262,  When,  therefore,  record- 
ing a  deed  is  not  legally  requisite,  it 
will  not  have  the  effect  of  notice 
when  recorded;  The  Commomccalth 
V.  Rodes,  6  B.  Monroe,  171;  James 


LE     NEVE     V.     LE     NEVE. 


179 


V.  Morey,  2  Cowen,  246 ;  Lewis  v. 
Baird,  3  M'Lean,  56;  Villard  v. 
Roberts,  1  Strobhart's  Equity,  393 ; 
Brown  V.  Budd,  2  Carter,  442.  And 
the  result  will  be  the  same  where  the 
deed  is  not  properly  acknowledged  or 
executed  to  be  recorded ;  Shidts  v. 
Moore,  1  M'Lean,  521 ;  Heistcr  v. 
Fortner,  2  Binney,  40 ;  Strong  v. 
Smith,  3  Id.  362 ;  Duphey  v.  Fre- 
naye,  5  Stewart  &  Porter,  215 ;  Car- 
ter V.  Champion,  8  Conn.  548  ;  Sum- 
ner V.  Rhodes,  14  Id.  135;  Oalt  v. 
Dohrell,  10  Yerger,  146 ;  Hodgson  v. 
Butts,  ^  Cranch,  540 ;  De  Witt  v. 
Moulton,  17  Maine,  418  ;  Halstead  v. 
The  Bank  of  Kentuchy,  4  J.  J.  Mar- 
shall, 534;  Chateau  v.  Jones,  11  Illi- 
nois, 300 ;  Sumner  v.  Rhodes,  14 
Conn.  135;  For/.-  v.  Harper,  24 
Mississippi,  424 ;  Johns  v.  Rilardons, 
3  Maryland  Ch.  Decisions,  57.  But 
as  this  mode  of  notice  is  the  creature 
of  legislation,  it  may  exist  under  the 
express  words  of  a  statute,  notwith- 
standing a  defect  of  execution  or  ac- 
knowledgment; Gillespie  v.  Rudd,  3 
M'Lean,  377.  It  is,  however,  essen- 
tial, that  the  record  should  be  made 
in  the  proper  place  and  office ;  and 
the  record  of  a  deed  in  one  county, 
will  not  operate  as  notice  with  regard 
to  lands  in  another;  Kerns  v.  Sioope, 
2  Watts,  15 ;  Astor  v  Wells,  4  Whea- 
ton,  466.  The  general  principle, 
moreover,  that  nothing  can  operate  as 
notice,  which  is  not  sufficiently  full 
and  explicit  to  give  the  requisite  in- 
formation, applies  with  as  much  force 
when  a  deed  is  recorded  as  when  it  is 
read  or  exhibited ;  and  hence  a  pur- 
chaser will  not  be  bound  by  the  re- 
cord of  a  conveyance,  which  fails  to 
disclose  or  specify  the  property  grant- 
ed, or  which  purports  to  convey  all 


the  real  and  personal  property  of  the 
grantor,  without  furnishing  any  suffi- 
cient means  of  identifying  it,  or  ascer- 
taining where  it  is  situated  and  of 
what  it  consists ;  Banks  v.  Aminon, 
3  Casey,  172;  Mundy  v.  Vawter,  3 
Grattan,  518  ;  Lally  v.  Holland,  1 . 
Swann,  396. 

Nothing  is  better  settled  than  that 
the  registry  of  an  instrument  will  not 
operate  as  notice,  nor  protect  those 
who  claim  under  it  against  subsequent 
purchasers,  unless  it  is  placed  fully 
and  entire  on  the  record,  without  the 
alteration  or  subtraction  of  any  mate- 
rial part;  and  it  has  consequently 
been  decided,  that  where  an  absolute 
deed  is  coupled  with  a  defeasance, 
both  must  be  recorded  ;  in  default  of 
which,  the  case  will  stand  as  if  neither 
appeared  on  the  record ;  Dey  v.  Dun- 
ham, 2  Johnson,  Ch.  112;  Hen- 
drickson's  Aj^peal,  12  Harris,  363. 
"A  mortgage,"  said  Black,  J.,  in 
Hendrickson' s  Appeal,  ''when  in  the 
shape  of  an  absolute  conveyance,  with 
a  separate  defeasance,  the  former  be- 
ing recorded  the  latter  not,  gives  the 
holder  no  rights  against  a  subsequent 
encumbrancer.  It  is  crood  for  nothinsr 
as  a  conveyance,  because  it  is,  in  fact, 
not  a  conveyance;  and  it  is  equally 
worthless  as  a  mortgage,  because  it 
does  not  appear  by  the  record  to  be 
a  mortgage."  The  law  was  so  held  in 
Friedly  v.  Hamilton,  17  S.  &  E.  70, 
on  the  obvious  ground  that  the  re- 
quisitions of  the  recording  acts  can- 
not be  satisfied,  by  registering  a  trans- 
action, which  is  really  a  mortgage,  as 
if  it  were  an  absolute  deed,  and  thus 
leading  subsequent  judgment-credi- 
tors to  believe,  that  the  grantor  re- 
tains no  interest  on  which  a  levy  can 
be  made  with  a  reasonable  prospect  of 


180 


NOTICE. 


satisfaction.  This  case  was  followed, 
under  similar  circumstances,  in  Ja- 
ques  V.  Weeks,  7  Watts,  261,  while  the 
same  principle  was  recognized  in  The 
Manufacturers'  Bank  v.  The  Bank  of 
Pennsylvania,  7  W.  &  3.  335,  and  said 
to  be  applicable  to  a  conveyance  which 
was  in  effect  a  mortgage,  although 
the  defeasance  had  not  been  reduced 
to  writing,  or  put  in  a  form  to  be  re- 
corded, because  the  parties  could  not 
escape  from  the  consequences  of  a  vio- 
lation of  the  statute,  by  putting  it  out 
of  their  power  to  comply  with  its 
terms.  But  a  purchaser,  who  buys 
on  the  faith  of  an  absolute  convey- 
ance, cannot  be  affected  by  proof  that 
it  was  subject  to  an  unrecorded  de- 
feasance, for,  as  against  him,  the  de- 
feasance has  in  effect  no  existence; 
Jaques  v.  Weeks,  7  Watts,  2G1,  271. 
And  in  Chile  v.  Rohinson,  2  John- 
son, 295,  the  title  of  the  mortgagee 
was  held  not  to  be  prejudiced  by  his 
failure  to  record  a  covenant,  which 
enlarged  the  equity  of  redemption  by 
stipulating  for  the  surrenderor  cancel- 
lation of  the  mortgage,  upon  terms  dif- 
ferent from  those  expressed  on  its  face. 
The  construction  which  makes  the 
record  of  a  deed  notice,  has  been  car- 
ried, in  New  York,  to  the  extent  of 
holding  that  it  will  have  that  effect, 
although  not  recorded  until  after  the 
record  of  a  subsequent  conveyance, 
and  that  every  purchaser  must  extend 
his  search  for  deeds  against  all  prior 
holders  of  the  title  down  to  the  period 
of  his  own  conveyance,  or  else  take 
subject  to  any  deed,  which  is  good 
against  his  immediate  vendor,  on  the 
ground  of  notice.  Thus  it  was  held 
in  Van  RennseUaer  v.  Clark,  17  Wend. 
25,  that  the  record  of  a  deed  was  con- 
structive  notice   to  a  purchaser,  al- 


though not  recorded  until  after  the 
record  of  the  conveyance  to  the  ven- 
dor, and  that  as  the  latter  had  actual 
notice,  the  purchaser  took  no  title. 
The  same  point  had  previously  been 
decided  in  the  case  of  Jackson  v.  Post, 
9  Cowen,  120;  15  Wend.  588.  But 
in  the  State  of  Connecticut  v.  Bradish, 
14  Mass.  291,  the  more  reasonable 
ground  was  taken,  that  in  examining 
a  title,  it  is  not  necessary  to  search 
the  record  as  against  an  antecedent 
grant(jr  of  the  property,  further  than 
the  registry  of  a  deed  duly  executed 
by  him  ;  and  consequently,  that  when 
such  a  deed  has  been  registered,  a 
purchaser  under  the  grantee  will  not 
be  affected  with  notice  of  a  prior  deed, 
recorded  subsequently,  but  before  the 
period  of  his  purchase.  "When," 
said  Jackson,  J.,  in  delivering  the 
opinion  of  the  court,  "  a  purchaser  is 
examining  his  title  in  the  registry  of 
deeds,  and  finds  a  good  conveyance 
to  his  grantor,  he  is  not  expected  to 
look  further.  This  case,  it  is  true, 
presents  the  question  in  a  very  strong 
point  of  view  for  the  demandants,  as 
Bradish  had  only  to  look  to  the  next 
page  to  discover  the  prior  conveyance 
to  them.  But  if  he  is  required  to 
look  one  day,  or  one  page  beyond  that 
which  exhibits  the  title  of  his  grantor, 
it  will  be  impossible  to  say  where  the 
inquiry  shall  stop."  The  Supreme 
Court  of  Pennsylvania  have,  notwith- 
standing, decided,  that  the  entry  of  a 
prior  deed  of  record  is  notice,  if  made 
before  a  subsequent  deed  is  recorded. 
Liyhtner  v.  Mooney,  10  Watts,  407; 
Ehncr  V.  Goundie,  5  W.  &  S.  49; 
Goundie  v.  The  Northampton  Water 
Co.,  7  Barr,  233.  But  although 
these  decisions  render  it  incumbent 
on    purchasers    from    a    grantee,    to 


LE     NEVE     V.     LE     NEVE. 


181 


searcli  the  record  for  conveyances  by 
the  grantor,  after  he  has  departed 
with  his  title,  down  to  the  period  at 
which  the  deed  from  him  to  the  ven- 
dor from  whom  the  purchase  is  made 
was  recorded,  they  do  not  make  it  ne- 
cessary to  prolong  the  search  after 
that  period. 

It  would  seem  to  be  universally 
admitted,  that  if  a  purchaser  be 
bound  to  continue  the  examination  of 
the  registry,  after  the  period  at  which 
the  parties  under  whom  he  claims 
have  parted  with  their  title,  he  is  not 
bound  to  carry  his  search  further  back 
than  the  period  at  which  they  acquired 
it.  Thus  in  Tlie  Farmer  s  Loan  Co. 
V.  Malthy,  8  Paige,  361,  it  was  de- 
cided, that  a  deed  made  and  recorded 
before  the  conveyance  of  the  land  to 
the  grantor,  is  not  notice  to  a  pur- 
chaser after  such  conveyance.  And 
the  same  view  was  taken  in  Doswell 
v.  Buchanan's  Heirs,  3  Leigh,  362. 

It  is  also  admitted  in  New  York, 
and  as  it  would  seem,  everywhere  else, 
that  the  registry  of  a  deed  is  not  no- 
tice to  parties  who  have  acquired  their 
title  before  it  is  registered,  and  that 
it  cannot  have  a  retrospective  opera- 
tion on  vested  rights.  Thus  it  was  held 
in  Stuyvesant  v.  Hone,  1  Sandford, 
419 ;  and  Stuyvesant  v.  Hall,  2  Bar- 
bour, Ch.  151,  that  the  registry  of  a 
subsequent  conveyance  of  a  part  of 
the  premises  covered  by  a  mortgage, 
is  not  notice  to  the  mortgagee,  and 
does  not  render  a  release  of  the  resi- 
due a  discharge  of  the  purchaser. 
The  same  point  was  decided  in  Taylor 
V.  Claris' s  Exrs,  5  Rawle,  51. 

The  registry  of  a  deed  is  notice  only 
to  those  who  claim  through  or  under 
the  grantor  by  whom  the  deed  was 
executed ;  llaynor  v.  Wilson,  6  Hall, 


473  ;  Sluyvesant  v.  Hall,  2  Barbour's 
Ch.  151;  Murray  v.  Ballou,  1  John- 
son, Ch.  556 ;  Keller  v.  Nutz,  5  S.  & 
R.  246;  Lifjlitner  v.  Mooney,  10 
Watts,  412;  Bates  v.  Norcross,  14 
Pick.  224;  Tllton  v.  Hunter,  24 
Maine,  29  ;  Crockett  v.  Maguire,  10 
Missouri,  34;  Lieby  v.  Wolf,  10  Ohio, 
83.  Nor  will  a  purchaser  be  bound 
to  take  notice  of  the  record  of  a  deed 
executed  by  a  prior  grantee,  whose 
own    deed   has    not    been    recorded ; 

Cook  V.  Travis,  22  Barbour,  338; 
Roberts  v.  Bourne,  23  Maine,  165; 
Harris  v.  Arnold,  1  Rhode  Island, 
125 ;  Lightner  v.  Mooney,  10  Watts, 
407.  And  where  the  deed  of  a 
vendor  is  not  recorded,  the  record 
of  a  mortgage  given  by  the  vendee  for 
the  purchase-money,  will  not  be  notice 
to  a  subsequent  purchaser ;  Veazie  v. 
Parker,  23  Maine,  170;    Pearce  v. 

Taylor,  lb.  246;  for  in  every  such 
case  the  purchaser  is  without  a  clue 
to  guide  him  in  searching  the  record. 
And  it  follows  conversely,  that  the 
purchaser  of  an  unrecorded  equity,  is 
bound  to  take  notice  of  a  deed  duly 
recorded  of  the  legal  title,  under 
which  the  equity  had  its  origin ;  Car- 
rey V.  Caxton,  4  Binney,  140 ;  Bellas 
V.  MCarty,  10  Watts,  13, 27;  because 
the  one  may  readily  be  traced  back  to 
the  other,  and  a  purchaser,  who  ob- 
tains a  duly  recorded  conveyance  of 
the  legal  title,  need  not  put  an  ante- 
cedent or  contemporaneous  convey- 
ance of  a  derivative  equity  on  the  re- 
cord. The  purchaser  of  a  title  arising 
under  an  unrecorded  grant,  has  also 
been  held  bound  to  take  notice  of  a 
conveyance  prior  to  the  grant,  al- 
though not  placed  on  record  until  af- 
terwards— his  own  title  being  imper- 
fect— and  thus  making  it  his  duty  to 


182 


NOTICE. 


learn  wbetter  there  is  any  obstacle  to 
its  being  perfected ;  Jackson  v.  Post,  9 
Cow.  120 ;  15  Wend.  588  ;  Van  Renn- 
sellaer  v.  Clark,  17  Id.  25;  Si:hutt 
V.  Larf/e,  6  Barbour,  375.  And  this 
rule  applies  even  to  a  purchaser  from 
a  vendee  under  a  second  unrecorded 
deed,  who  bought  in  good  faith  with- 
out notice  of  the  first,  notwithstand- 
ing the  general  principle  that  a  pur- 
chase with  notice  from  a  purchaser 
without  notice,  will  give  a  good  title; 
Schntt  V.  Large;  because,  as  between 
two  grantees,  he  who  records  first  will 
have  the  priority,  although  he  may 
fail  to  do  so  until  after  the  convey- 
ance to  the  second,  who  will  have, 
consequently,  nothing  left  to  convey 
to  subsequent  purchasers;  Lighfner 
V.  Mooney,  10  Watts,  407 ;  Ehner  v. 
Goundie,  5  W.  &  S.  49.  But  in  Day 
v.  Clark,  25  Vermont,  398,  the  point 
was  held  difi'erently,  and  the  record  of 
a  mortgage  said  to  be  too  late  to  affect 
the  plaintiff,  who  claimed  under  a  sub- 
sequent deed  from  a  prior  purchaser, 
who  had  bought  without  notice  of  the 
mortgage,  although  the  deed  to  the 
plaintiff  was  not  placed  on  record 
until  after  the  mortgage  was  recorded. 
It  is  or  should  be  well  settled,  that 
when  two  successive  grantees  have 
both  been  sufficiently  negligent,  to 
leave  the  deeds  under  which  they 
claim  unrecorded,  the  loss  will  be 
thrown  on  the  first,  from  whose  default 
in  not  giving  the  second  the  means 
of  information,  it  may  be  presumed 
to  have  originated;  Carter  v.  The 
Bank  of  Georgia,  24  Alabama,  37; 
and  it  is  not  easy  to  see  how  this 
default  can  be  made  good  by  a  subse- 
quent record  after  the  second  pur- 
chaser has  parted  with  his  money, 
and  when  it  can  no  longer  be  of  any 


real  service.  The  object  of  the  re- 
cord is  to  give  notice,  and  notice 
must  always  be  too  late  after  value 
has  been  paid  and  a  deed  executed ; 
ante,  69.  And  it  would  seem  equally 
plain,  that  those  only  should  be  al- 
lowed to  take  advantage  of  the  failure 
to  record  a  deed  or  mortgage,  who 
have  been  led  to  part  with  their  money 
or  property  by  not  finding  it  on  the 
record,  and  that  unrecorded  convey- 
ances should,  consequently,  be  held 
valid  against  prior  creditors  and  pur- 
chasers, even  when  void  against  those 
who  buy  subsequently.  It  has,  how- 
ever, been  held  in  Pennsylvania,  that 
a  judgment  against  an  unrecorded 
equity  arising  under  an  agreement 
for  the  sale  of  land,  has  a  preference 
over  a  mortgage  executed  by  the 
vendee,  after  the  acquisition  of  the 
legal  title,  unless  the  mortgage  is  re- 
corded at  the  time  and  in  the  man- 
ner prescribed  by  statute;  Foster^ s 
Apjieal,  3  Barr,  79 ;  Campbell's  Ap- 
^yeal,  G  American  Law  Register,  7G4  ; 
but  this  would  seem  a  departure  from 
general  principles,  and  would  hardly 
be  regarded  as  law  elsewhere;  ante. 

Nothing  is  better  settled  in  Eng- 
land and  this  country,  than  the  gen- 
eral doctrine,  that  the  purchaser  of  a 
legal  title,  will  be  liable  to  all  equities 
of  which  he  had  actual  or  constructive 
notice  at  the  time  of  the  purchase; 
Wormley  v.  Wormley,  8  Wheaton, 
421;  Caldwell  v.  Carrhgton,  9  Pe- 
ters, 86 ;  Langdon  v.  Woodcock,  2  B. 
Monroe,  105  ;  Moreland  v.  Lemasters, 
4  Black.  583;  Murray  v.  Ballon,  1 
Johnson,  Ch.  566;  Murray  v.  Fin- 
stcr,  2  Id.  155;  The  Methodist  Epis- 
copal Church  V.  Jaques,  1  Id,  450 ; 
Grimstone  v.  Carter,  3  Paige,  42 ; 
Govcrncur    v.    Lynch,    2     Id.    300 ; 


LE     NEVE     V.     LE     NEVE. 


183 


Smith  V.  Daniel,  2  M'Cord,  Ch.  149; 
Brice  V.  Brice,  5  Barbour's  S.  C.  534; 
Duval  V.  Bibb,  4  Hen.  &  Munford, 
119;  Fierson  v.  Ive^/,  1  Yerger,  29; 
Massey  v.  M'llvame,  2  Hill,  Ch. 
426 ;  Liggett  v.  Wall,  2  A.  K.  Mar- 
shall, 28;  Pugh's'  Heirs  v.  BiWs 
Heirs,  1  J.  J.  jMarshall,  403 ;  Den  v. 
MKnight,  6  Halsted,  385.  This  rule 
applies  with  as  much  force  to  personal 
property  as  to  real  estate,  and  renders 
the  purchaser  of  stock,  or  of  a  chattel, 
subject  to  all  trusts  and  equities  of 
which  he  had  notice  at  the  time  of 
the  purchase;  The  Mechanics'  Bank 
of  Ahxandria,  1  Peters,  299;  Clark 
V.  Flint,  22  Pick.  251.  But  as  the 
effect  of  notice  is  due  wholly  to  its 
operation  in  binding  the  conscience 
of  the  purchaser,  it  will  not  invali- 
date any  act  which  is  consistent 
with  good  and  substantial  equity; 
and  hence  a  lien  or  security  obtained 
before  notice  of  an  equity  or  unre- 
corded conveyance,  may  be  surren- 
dered with  safety,  and  another  taken 
after  notice  has  been  given,  because 
the  exchange  cannot  prejudice  the 
rights  of  the  holder  of  the  equity,  and 
merely  leaves  him  in  the  same  posi- 
tion which  he  held  before  it  was 
effected;  Wheatony.  Dyer,  15  Conn. 
307. 

It  is  equally  well  settled  in  Eng- 
land, that  when  a  purchaser  by  deed 
duly  registered,  has  notice  of  a  prior 
unregistered  conveyance,  he  will  be 
restrained  in  equitj'from  availing  him- 
self of  his  purchase.  In  the  principal 
case,  this  was  put  on  the  ground,  that 
although  the  words  of  the  registry  act 
are  express,  that  unregistered  deeds 
shall  be  void  as  against  subsequent 
purchasers,  the  legislature  could  not 
have  intended  to  sanction  such  gross 


wrong  and  injustice,  as  is  implied  in 
accepting  a  conveyance  of  an  estate, 
with  a  knowledge  that  it  has  previous- 
ly been  sold  to  another,  and  for  the 
purpose  of  depriving  him  of  the  benefit 
of  his  purchase.  This  construction 
of  the  act  is  confined,  somewhat  incon- 
sistently to  the  courts  of  equity,  and 
it  is  held  at  law,  that  a  deed  duly  re- 
gistered, passes  the  estate  even  when 
taken  with  a  full  knowledge  of  a  prior 
unregistered  conveyance;  Doe  v.  Al- 
sop,  3  B.  &  Aid.  25. 

But  it  is  established  with  us,  both 
in  law  and  in  equity,  that  our  record- 
ing acts  only  apply  in  favor  of  parties 
who  have  acted  with  good  faith,  and 
cannot  be  made  the  means  of  fraud  or 
oppression.  It  is,  therefore,  held  in 
general,  in  this  country,  that  a  con- 
veyance duly  registered,  passes  no 
title  whatever,  when  taken  with  a 
knowledge  of  the  existence  of  a  prior 
unregistered  conveyance;  Jackson  \. 
Sharp,  9  Johnson,  163 ;  Jackson  v. 
Leek,  19  Wend.  339 ;  Farnsicorth  v. 
Childs,  4  Mass.  637 ;  Warnock  v. 
Wightman,  1  Brevard,  331 ;  Van  Meter 
V.  jWFaddin,  8  B.  Monroe,  442; 
Schutt  V.  Large,  6  Barbour's  S.  C.  R. 
373;  Porter  v.  Cole,  4  Maine,  20; 
Doe  V.  Reed,  4  Scammon,  117;  Ru- 
pert V.  Marsh,  15  Illinois,  542 ;  The 
Ohio  Life  Ins.  Co.  v.  Ledyard,  8 
Alabama,  866 ;  Martin  v.  Sale,  1 
Bailey's  Equity,  1 ;  Jackson  v.  Paige, 
4  Wend.  385 ;  Tattle  v.  Jackson,  6 
Id.  213;  Parker  v.  Jackson,  11  Id. 
442 ;  Jackson  v.  Sharp,  1  Johnson, 
466 ;  MRaven  v.  31'  Guire,  9  S.  &  M. 
34 ;  Pike  v.  Armstead,  1  Dev.  Equity, 
110;  Ingrem  v.  Phillips,  3  Strob- 
hart,  565 ;  Copeland  v.  Copeland,  28 
Maine,  255 ;  Newman  v.  Chapman, 
2  Piandolph,  93;  Foicke  v.  Woodward, 


184 


NOTICE. 


1  Speer's  Ch.  233;  Ballei/  v.  Wilson, 
1  Dev.  &  Bat.  Ch.  32 ;  Ten  Eych  v. 
Simpson,  1  Sandford,  Chancery,  242  ; 
Warren  v.  Scotf,  11  Foster,  332 ; 
Parker  v.  Kane,  4  Wisconsiu,  1 ;  and 
the  same  rule  applies  in  most  of  the 
states,  to  unrecorded  mortgages ;  De 
Vendal  v.  Malone,  2.5  Alabama,  272  ; 
Woodworth  v.  Guzman,  1  California, 
203;  Warburton  v.  Lauman,  2  Iowa, 
420.  This  construction  is  sustained 
by  the  wording  of  some  of  these  acts 
"which  declare  unregistered  convey- 
ances void,  as  against  subsequent  bona 
fide  purchasers,  or  purchasers  without 
actual  notice,  and  thus  sanction  the 
inference  that  they  will  be  good,  when 
notice  or  mala  fides  is  shown  to  have 
existed;  Lawrencey.  Stratton,Q  Cush- 
ing,  1G3 ;  Knotts  v.  Geiger,  4  Rich- 
ardson, 32 ;  Draper  v.  Bryson,  17 
Missouri,  71.  But  it  seems  to  be  well 
settled,  that  the  construction  is  the 
same,  where  no  such  qualifying  words 
are  introduced,  and  where  it  is  de- 
clared that  unregistered  conve^'ances 
shall  be  void  as  against  purchasers 
generally,  or  as  against  all  persons 
who  are  not  parties  to  the  conveyance ; 
Gilbert  v.  Burgott,  10  Johnson,  457; 
Van  Rennsellaer  v.  ChirJc,  17  Wend. 
25;  Corrcy  v.  CaxUm,  4  Binney,  140, 
146.  Thus,  under  the  recording  acts 
of  Pennsylvania,  an  unrecorded  mort- 
gage is  deprived  of  all  operation  as  a 
lien  on  the  premises  mortgaged,  with- 
out any  saving  of  the  rights  of  the 
mortgagee,  as  against  parties  acting 
m,ala  fide  or  with  notice.  But  it  has, 
notwithstanding,  been  decided,  that 
notice  of  such  a  mortgage  will -supply 
the  want  of  registry,  and  bind  a  sub- 
sequent purchaser  ;  Stroud  v.  Lock- 
hart,  4  Dallas,  153;  Jaques  v.  Weeks, 
7   Watts,   261;    The  Manufae.    and 


Mechanics  Bank  v.  Tlie  Bank  of 
Pennsijlvania,  7  W.  &  S.  335;  Solms 
V.  M'  Cullovgh,  5  Barr,  473.  And  in 
some  of  the  cases,  this  principle  of 
construction  has  been  held  to  be  one  of 
such  general  application,  that  notice  of 
an  unregistered  d'eed  to  a  creditor  be- 
fore judgment,  will  prevent  the  lien 
of  the  judgment  from  attaching,  even 
when  such  deeds  are  made  absolutely 
void  as  against  creditors;  ante.  111. 

The  rule,  that  a  purchaser,  without 
notice,  will  take  a  good  title,  even 
when  claiming  through  or  under  par- 
ties afiFected  with  notice,  applies  with 
as  much  force  in  cases  under  the  re- 
cording acts,  as  when  the  question 
relates  to  a  prior  equity ;  Knox  v. 
SiUoway,  10  Maine,  221 ;  Connecti- 
cut V.  BradisJi,  14  Mass.  296 ;  Mal- 
lory  V.  Stodder,  6  Alabama,  801  ; 
Truluck  V.  Peeples,  3  Kelly,  446; 
and  it  is  equally  well  settled,  that 
a  purchase  with  notice  will  be  good, 
if  made  from  one  who  is  shown  to 
have  been  a  purchaser  without  notice  ; 
Trull  V.  Bigcluio,  16  Mass.  406; 
Boynton  v.  Rees,  8  Pick.  329 ;  Mott 
V.  Clark,  9  Barr,  399 ;  Lacy  v.  Wil- 
son, 4  Munford,  313. 

In  the  recent  case  of  Schutt  v. 
Large,  6  Barbour,  373,  it  was  decid- 
ed, that  a  conveyance  to  a  bona  fide 
purchaser,  by  a  purchaser  with  notice, 
cannot  cure  the  defect  of  the  original 
purchase,  although  it  may  put  the  pro- 
perty beyond  its  reach,  and  that  it 
will  attach  itself  to  the  title  upon 
a  subsequent  reconveyance  to  the 
guilty  party.  Little  doubt  can  be 
entertained  of  the  soundness  of  this 
decision;  but  the  court  went  on  to 
decide,  that  a  purchaser  with  notice 
of  a  prior  unrecorded  deed  will  not 
take    a    good   title  under  a  convey- 


LE     NEVE     V.     LE     NEVE. 


185 


ance  from  a  purchaser  for  valuable 
consideration,  without  notice,  which 
is  clearly  inconsistent  with  all  the 
principles  and  authorities  on  the  sub- 
ject ;  Lawrence  v.  Stratton,  6  Gush- 
ing, 163  ;  ante. 

In  order,  however,  to  render  the 
title  of  a  purchaser  without  notice  of 
a  prior  unrecorded  deed,  valid,  under 
the  decisions  in  Pennsylvania,  his  own 
deed  must  be  placed  regularly  on  the 
record ;  and  a  failure  to  take  this  pre- 
caution will  expose  him  to  the  risk  of 
losing  his  purchase,  by  a  subsequent 
record  of  the  antecedent  grant; 
Liglitner  v.  Mooney,  10  Watts,  407  ; 
Ehnrr  v.  Goundle,  '5  W.  &  S.  49. 
And  the  cases  in  New  York  go  still 
further,  by  deciding  that  a  subsequent 
grantee  will  stand  in  no  better  posi- 
tion, and  can  neither  rely  on  the  good 
faith  of  the  purchaser  under  whom 
he  claims,  nor  on  his  own  want  of  no- 
tice, because  he  is  bound  to  pursue  the 
search  for  conveyances  by  the  origi- 
nal grantor,  down  to  the  time  at  which 
he  himself  acquires  title.  This  course 
of  decision  would,  however,  seem  ob- 
jectionable, from  its  necessary  ten- 
dency to  increase  the  expense  and 
length  of  searches  ]  and  the  law  was 
held  the  other  way  in  the  recent  case 
of  Daij  V.  Clark,  25  Vermont,  398. 

It  has  also  been  held,  and  would 
seem  a  necessary  deduction  from  the 
principles  on  which  the  doctrine  which 
we  are  considering  is  founded,  that 
when,  of  two  successive  purchasers,  the 
second  has  notice  of  the  first,  and  the 
third  of  the  second,  but  not  of  the 
first,  the  first  will  have  priority  over 
both  the  others,  to  the  extent  of  the 
right  or  interest  of  the  second,  be- 
cause the  third  must  yield  to  the  se- 
cond, while  the  second  obviously  can- 


not hold  his  ground  against  the  first ; 
Fomfret  v.  Lord  Windsor,  2  Vesey, 
472,  486.  Thus,  in  Wilcox  v.  Wain, 
10  S.  &  R.  380,  a  judgment,  which 
would  otherwise  have  had  to  yield  to 
the  priority  which  belongs  to  debts 
due  to  the  United  States,  was  pro- 
tected by  the  intervention  of  a  sub- 
sequent mortgage,  which  was  good 
against  the  United  States,  although 
not  against  the  judgment;  while  the 
same  principle  was  held  in  the  Manu- 
facturers' Bank  V.  The  Bank  of  Penn- 
sylvania, 7  Watts  &  Sergeant,  335, 
to  render  an  unrecorded  mortgage 
good,  not  only  against  a  second  mort- 
gagee, who  had  notice  of  it,  but  against 
subsequent  judgment-creditors,  who 
had  not,  but  whose  liens  were  sub- 
ject to  the  second  mortgage,  which 
had  been  duly  recorded,  and  were  con- 
sequently also  postponed  to  the  first. 

Reason,  and  the  object  of  the  re- 
cording acts,  might  seem  to  require, 
that  the  failure  of  a  grantee  to  regis- 
ter the  deed,  under  which  he  claims, 
should  postpone  him  to  a  subsequent 
purchaser,  who  buys  on  the  faith  of 
the  title  as  recorded,  whether  the  lat- 
ter place  his  deed  upon  record  or  not, 
which  may  be  material  to  those  who 
succeed  him  as  purchasers,  but  can 
have  little  influence  on  a  prior  gran- 
tee, whose  right  has  already  vested. 
On  the  other  hand,  it  maybe  said  with 
almost  equal  force,that  the  failure  of  the 
subsequent  purchaser  to  put  the  deed 
on  record,  deprives  the  first  of  a  means 
of  learning  the  fraud  which  has  been 
practised  upon  him,  and  having  timely 
recourse  to  the  grantor  for  indemnity 
or  compensation.  And  the  courts  of 
Pennsylvania,  acting  under  the  ex- 
press words  of  the  statute  of  that 
state,  hold  that  as  between  two  gran- 


186 


NOTICE. 


tees,  whose  rights  are  in  other  respects 
equal,  he  who  first  places  his  deed  on 
record  will  have  the  better  title,  al- 
though he  may  have  delayed  record- 
ing it  until  after  the  grant  to  the 
other,  who  may  thus  have  been  led 
into  a  false  position,  which  he  would 
otherwise  have  avoided  ;  Lvjhtner  v. 
3Tooney,  10  Watts,  407;  Ehner  v. 
Goundie,  5  W.  &  S.  49.  It  has  been 
held  to  follow,  that  when  a  second  un- 
recorded grant  has  thus  been  invali- 
dated by  the  subsequent  record  of  the 
first,  a  purchaser  of  the  former  will  be 
bound  to  take  notice  of  the  latter,  and 
cannot  rely  on  the  good  faith  of  his 
immediate  vendor,  or  his  own  want  of 
actual  notice,  as  a  protection ;  Jack- 
son V.  Post,  9  Cowen,  120  ;  15  Wend. 
588;  Van  ReTinsellaer  v.  Clark,  27; 
lb.  25 ;  Schutz  V.  Large,  6  Barbour, 
875.  A  diiferent  view  was,  however, 
taken  in  Day  v.  Clark,  25  Vermont, 
898,  and  the  right  acquired  by  a  pur- 
chase, without  notice  of  a  prior  mort- 
gage, held  to  pass  unimpaired  to  a 
subsequent  grantee,  notwithstanding 
an  interveninjr  record  of  the  mortsase. 
Notwithstanding  the  weight  of  au- 
thority in  favor  of  the  position,  that 
the  equity  arising  from  notice,  will 
supply  the  want  of  registration,  it  has 
been  decided  by  the  Supreme  Court 
of  Ohio,  that  this  equity  cannot  coun- 
tervail an  express  statutory  declara- 
tion, "  that  mortgages  shall  take  ef- 
fect from  the  time  that  they  are  re- 
corded ;"  and  it  is  held  in  that  State, 
that  express  notice  of  an  unrecorded 
mortgage  will  not  invalidate  one  which 
is  duly  recorded  ;  Stansell  v.  Roberts, 

13  Ohio,   148  ;   Mayham  v.  Coomhs, 

14  Id.  428 ;  Jackson  v.  Luce,  lb. 
514;  IlolUdayv.  The  Franklin  Bank, 
16  Id.  533.     The  court  were  of  opi- 


nion, that  as  between  creditors  prio- 
rity is  a  mere  question  of  diligence, 
and  that  where  a  creditor  has  gained 
an  advantage,  by  taking  a  mortgage, 
and  subsequently  lost  it,  by  neglect- 
ing to  take  proper  measures  to  make 
the  security  eiFectual,  he  has  no  equi- 
table right  to  relief  against  another, 
who  has  used  greater  diligence  in  pro- 
viding for  his  own  safety,  by  taking 
and  recording  a  subsequent  mortgage, 
although  with  full  knowledge  of  the 
existence  of  the  first. 

In  deciding  Mayham  v.  Coombs, 
Hitchcock,  J.,  held  the  following  lan- 
guage :  '*  It  has  been  said,  that  a  sub- 
sequent mortgagee,  with  notice,  de- 
frauds the  prior  mortgagee,  by  putting 
his  mortgage  first  upon  record.  In 
one  sense  of  the  word,  perhaps  he 
does,  but  there  is  no  actual  fraud. 
Take  an  instance.  A.  and  B.  are 
creditors  of  C. ;  the  debts  are  equal, 
and  sufficient  to  sweep  away  the  en- 
tire property  of  the  debtor;  A.  seeks 
his  opportunity,  and  for  the  security 
of  his  debt,  procures  a  mortgage  upon 
the  entire  property  of  C. ;  when  he 
does  it,  he  knows  of  the  debt  of  B., 
and  knows,  further,  that  his  mort- 
gage will  entirely  defeat  the  collection 
of  that  debt.  Now,  in  the  common 
acceptation  of  the  term,  and  accord- 
ing to  the  ideas  of  the  profession, 
here  is  no  fraud.  True,  B.  is  depriv- 
ed of  the  collection  of  his  debt,  but 
there  is  no  fraud.  A.  is  the  vigilant 
creditor;  he  only  took  the  mortgage 
to  secure  what  was  honestly  his  due. 
But  change  the  case.  A.,  after  hav- 
ing procured  his  mortgage,  becomes 
negligent;  he  does  not  place  it  upon 
record  ;  B.,  knowing  the  existence  of 
that  mortgage,  but  equally  anxious  to 
secure  his  debt,  procures  a  mortgage 


LE     NEVE     V.     LE     NEVE. 


187 


and  places  it  upon  record.  All  cry 
out,  here  is  a  fraud.  Now,  my  per- 
ceptions are  so  obtuse,  that  I  can  per- 
ceive no  difference,  in  a  moral  point 
of  view,  in  the  actions  of  these  two 
men.  They  are  both  creditors,  and 
both  equally  anxious  to  secure  their 
debts.  They  pursue  the  course  point- 
ed out  by  law  to  effect  their  object. 
The  one  is  the  most  vigilant  to  get 
his  recorded.  The  course  of  neither 
is  in  accordance  with  the  principles 
of  abstract  justice.  Such  justice 
would  require,  that,  inasmuch  as  the 
property  was  not  sufficient  to  pay  both, 
it  should  be  equally  divided  between 
them." 

This  reasoning  at  best  only  applies 
to  the  case  of  a  mortgage  taken  as  se- 
curity for  an  antecedent  debt,  and  not 
for  fresh  advances.  To  create  a  new 
debt,  when  there  is  nothing  previously 
at  risk,  with  a  full  knowledge  that  the 
security  taken  for  it,  cannot  be  made 
available  without  injury  to  a  prior  cre- 
ditor, is  an  undoubted  wrong  to  the 
latter.  And  it  must  be  remembered, 
that  even  when  the  security  is  for  an 
antecedent  debt,  it  is  a  fraud  in  the 
debtor  to  mortgage  property  to  one 
man,  which  he  has  previously  mort- 
gaged to  another,  unless  with  the  un- 
derstanding, that  the  second  mortgage 
shall  be  subject  to  the  first.  If,  there- 
fore, the  second  mortgage  is  taken 
subject  to  this  understanding,  the  cre- 
ditor is  bound,  and  if  it  is  not,  he  is 
an  accomplice  in  the  wrongful  act  of 
the  debtor.  This  view  is,  in  great 
measure,  sustained  by  the  subsequent 
cases,  which  concede  that  the  deci- 
sion made  in  Mai/ham  v.  Coombs,  is 
at  variance  with  general  principles, 
and  derives  its  authority  solely  from 
the  language  of  the  statute,  and  the 


interpretation  which  has  been  put  on 
it  by  the  courts,  under  which  notice 
cannot  supply  the  want  of  a  record ; 
and  unrecorded  mortgages  have  no 
validity  against  purchasers  or  credi- 
tors, whether  claiming  by  judgment 
or  under  an  assignment  by  the  mort- 
gagor; White  v.  Denman,  16  Ohio, 
59 ;  1  Ohio,  N.  S.  110 ;  Bloom  v. 
Nog(jle,  4  Id.  45. 

The  reasoning  on  which  the  doc- 
trine of  notice  was  originally  applied 
to  the  registry  acts  in  England,  and 
on  which  it  has  been  upheld  and  ex- 
tended here,  would  seem  to  show  that 
it  is  only  applicable,  where  the  notice 
of  the  prior  conveyance  is  equivalent 
to  actual  knowledge,  and  not  where 
it  is  merely  a  matter  of  legal  or  equi- 
table construction.  For  as  the  courts 
of  both  countries  proceed  on  the 
ground,  that  these  acts  apply  for  the 
protection  of  parties  who  have  acted 
with  good  faith,  it  follows  that,  to  ex- 
clude their  operation  by  proof  of  no- 
tice, it  should  be  such  as  to  show  a 
conscious  departure  from  the  rules  of 
fair  and  equitable  dealing.  Construc- 
tive notice,  therefore,  although  abso- 
lutely conclusive  in  cases  not  within 
the  registry  acts,  would  seem  insuffi- 
ent,  where  they  are  applicable,  unless 
it  is  of  such  a  nature  as  to  justify  an 
inference  of  actual  knowledge  or  no- 
tice, which  must  necessarily  be  shown, 
in  order  to  make  out  a  want  of  good 
faith  on  the  part  of  the  purchaser. 
"Apparent  fraud  or  clear  and  undoubt- 
ed notice  is  a  proper  ground  of  relief," 
said  Lord  Hardwicke,  in  i7iHev.i>oc?t7, 
2  Atk.  275,  "  but  suspicion  of  notice, 
though  a  strong  suspicion,  is  not  suf- 
ficent  to  justify  this  court  in  breaking 
in  upon  an  act  of  Parliament."  The 
opinion  thus  expressed  has  been  not 


188 


NOTICE. 


only  sustained,  but  extended  by  the 
subsequent  course  of  English  Equi- 
ty.  In  Jel/andY.  Stainhridge,  3  Ves. 
478,  actual    knowledge  of  the  prior 
deed,  and  an  intent  to  defraud  the  par- 
ties claiming  under  it,  were  held  neces- 
sary to  avoid  the  priority  acquired  by 
the  prior  registration  of  the  second 
deed.     And  in  Wt/att  v.  BarweU,  (19 
Yesey,  435,)  the  same  doctrine   was 
enforced  by  Sir  William  Grant  still 
more   strongly,  and  the   constructive 
notice  accruing  from  a  pending  suit, 
held  insufficient  to  postpone  a  second 
purchaser  by  deed  duly  recorded,  and 
without    actual    notice.       The    same 
point  was  decided  in  The  City  Coun- 
cil V.  Page,  1  Speer's  Eq.   139,  212, 
on  the  general  principle,  that  when 
a  right  given  by  statute  is  in  ques- 
tion, the  proof  of  notice  must  be  such 
as  to  show  actual  fraud. 

These  decisions,  and  the  present 
course  of  the  English  courts,  appear  to 
confine  the  right  to  relief,  in  England, 
against  registered  conveyances,  to  cases 
of  clear  and  actual  notice  ;  Sugden  on 
Vendors,  vol.  3,  page  373,  pi.  41 ; 
ante.  And  so  far  as  this  doctrine  is 
sound  in  principle  it  ought  to  prevail 
in  this  country,  for  there  seems  to  be 
nothing  in  our  legislation  to  render  it 
less  applicable  here  than  in  England. 
The  English  registry  act  has  been 
substantially  followed  in  some  of  the 
states.  In  others,  unregistered  deeds 
are  only  avoided  as  against  hona  fide 
purchasers.  But  this  change  seems 
to  have  been  intended  to  introduce 
the  doctrine  of  equity  into  our  courts 
of  common  law,  and  not  to  vary  that 
doctrine  as  already  established,  nor  to 
prevent  purchasers,  whose  good  faith 
is  not  impeached,  from  availing  them- 
■  selves  of  the  benefits  of  the  system  of 


registration.     This  reasoning  is  sup- 
ported by  a  number  of  cases  in  which 
it  has  been  held,  that  there  must  be 
actual  notice,  or  knowledge,  of  a  prior 
unrecorded  conveyance,  to  avoid  a  se- 
cond, which  has  been  duly  recorded  ; 
Martin  v.  Sale,  1  Bailey's  Equity,  4; 
The   Ohio  Life  Ins.    Co.  v.  Ross,  2 
Maryland  Ch.   Decisions,    25  ;    The 
United   States  Ins.  Co.  v.  Shriver,  3 
Id.  381 ;  Frothingham  v.  Stacker,  11 
Missouri,    77 ;  Harris  v.  Arnold,   1 
Rhode  Island,  125;  Flagg  v.  Mann, 
2  Sumner,  48G,  557  j  and  that  con- 
structive notice  can  only  be  relied  on 
for  that  purpose,  so  far  as  it  tends  to 
prove  actual  notice,  as  distinguished 
from  notice  by  legal  intendment ;  Bush 
V.  Golden,  17  Conn.  594;  Cunningham, 
V.  Buckingham,  1  Ohio,  264 ;  Nohson 
V,  Stout,  2  Stockton,  Ch.  419  ;   The 
Ohio   Life    Insurance    Co.  v.  Ross, 
12  Maryland  Ch.  Dec.  38.     Thus  it 
was  held  in  Korcross  v.  Widgery,  2 
Mass.  509,  that  to  set  aside  a  regis- 
tered deed,  in  favor  of  another  not 
registered,  on  the  ground  of  fraud, 
the   fraud   must   be   clearly   proved. 
And  as  notice   must   be   proved,  in 
order  to  prove  fraud,  this  dictum  im- 
plies the  insufiiciency  of  constructive 
notice  not  amounting  to  fraud.     In 
the  subsequent  case  of  MMechan  v. 
Griffing,  3  Pick.  148,  the  court  held, 
that  where  a  tenant  in  common,  or  a 
tenant  for  years,  takes  a  conveyance 
of  the  residue  of  the  estate,  or  of  the 
reversion,  which  is  not  placed  on  re- 
cord, his  subsequent  possession  cannot 
be  considered  as  evidence  of  construc- 
tive, or  actual  notice,  as  against  a  sub- 
sequent  purchaser  by  deed  duly  re- 
corded.    And  the  whole  tenor  of  the 
decision  was  such  as  to  imply,  that 
constructive  notice  will  not   be  suf- 


LE     NEVE     V.     LE     NEVE. 


189 


ficient  in  such  cases,  except  as  evi- 
dence of  actual  notice;  Lawrence  Y. 
Stratton,  6  Gushing,  163,  168. 

The  Legislature  of  Massachusetts 
have  since  provided  expressly,  that 
deeds  unrecorded  shall  only  be  effec- 
tual as  against  the  grantor  and  his 
heirs,  and  other  persons  having  actual 
notice ;  2  Mass.  R.  Sts.  c.  59  ;  Curtis 
V.  Murphi/,  3  Metcalf,  405  ;  Uennessy 
V.  Andrews,  6  Gushing,  170 ;  Poineroy 
V.  Stevens,  11  Metcalf,  214;  Laio- 
rence  v.  Stratton,  6  Gushing,  163; 
and  actual  notice  is  also  necessary 
under  the  present  legislation  of  Maine, 
and  of  some  of  the  other  states  of  the 
Union;  Hoffing  v.  Burnham,  2  Iowa, 
39 ;  Beattie  v.  Butler,  21  Missouri, 
813 ;  Butler  v.  Stevens,  26  Maine,  484 ; 
Stafford  V.  Weston,  29  Id.  140.  The 
true  intent  and  meaning  of  these  sta- 
tutes has  been  held  to  be  to  do  away 
with  the  refinements  of  constructive 
notice,  whether  arising  from  possession; 
Pomeroyy.  Stevens;  Beattiex.  Butler; 
or  from  other  facts  or  circumstances, 
and  to  protect  those  claiming  under 
deeds  duly  registered,  unless  they  can 
be  shown  to  have  had  such  full  know- 
ledge of  the  existence  of  a  prior  un- 
registered conveyance,  as  to  render 
them  justly  chargeable  with  a  wanton 
and  fraudulent  disregard  of  the  inter- 
est of  the  prior  grantee.  The  courts 
of  North  and  South  Garolina  have 
followed  the  same  course  of  decision 
on  general  principles ;  and  it  ie  held 
in  those  states  that  deeds  duly  re- 
corded, cannot  be  set  aside  in  favor  of 
unrecorded  conveyances,  unless  upon 
evidence  sufficient  to  show  knowledge 
or  actual  notice,  and  thus  prove  the 
existence  of  an  intent  to  defraud,  or 
to  act  with  such  a  disregard  of  the 
rights  of  others,  as  must  be  considered 


equivalent  to  fraud ;  The  City  Coun- 
cil V.  Paige,  1  Speer's  Equity,  159, 
212 ;  Martin  v.  Sale,  1  Bailey's  Eq. 
24;  Wallace  v.  Craps,  3  Strobhart, 
266;  Fleming  Y.  Burgin,  2  Iredell's 
Equity,  584.  In  the  latter  case  the 
court  doubted  whether,  under  a  pro- 
vision that  mortgages  shall  not  be 
valid  as  against  creditors  and  purchas- 
ers, until  registration,  the  want  of  re- 
gistration can  be  supplied  by  notice, 
and  decided  that  if  it  can,  the  notice 
must  be  sufficient  to  affect  the  pur- 
chaser with  actual  knowledge,  and 
consequent  fraud.  ''In  Le  Neve  v. 
Le  Neve,  3  Atkins,  646,"  said  Ruffin, 
C.  J.,  "  Lord  Hardwicke  laid  down  the 
rule,  which  has  since  been  followed, 
that  notice  of  an  existing  unregistered 
deed  bound  one  who  took  a  subse- 
quent one,  and  first  registered  it. 
That,  certainly,  tended  to  subvert  the 
register  acts,  as  allowing  parol  evi- 
dence to  show  that  knowledge  of  the 
deed  in  pa<s  which  could  be  derived 
from  the  registration,  and  it  would 
effectually  subvert  them,  if,  as  in  ordi- 
nary cases  of  notice  of  a  prior  equity, 
a  notice  of  anything  that  would  lead 
to  inquiry,  were  held  to  be  sufficient 
notice.  Fortunately,  a  case  came  be- 
fore the  same  great  judge  which  called 
for  his  opinion  on  that  point;  Iline  v. 
Doddj  2  Atkins,  275.  In  it  he  in- 
forms us,  that  as  the  act  of  parliament 
was  positive,  and  made  to  prevent  per- 
jury from  contrariety  of  evidence,  he 
could  not  overturn  the  act  upon  sus- 
picion, but  only  for  apparent  fraud. 
He  says,  the  only  cases  that  had  been 
decided,  were  cases  of  fraud,  though 
he  adds,  that  possibly  there  may  have 
been  others  upon  notice  divested  of 
fraud,  but  then  the  proof  must  be  ex- 
tremely clear.     He,  therefore,  quali- 


190 


NOTICE. 


fies  the  rule  that  fraud  is  necessary, 
by  the  expression,  'or  clear  and  un- 
doubted notice,'  which  can  mean  no 
less  than  a  full  kno-wledge  of  the  con- 
tents of  the  deed,  and  that  the  person 
omitted  to  register  it  merely  from  in- 
attention or  inability,  and  not  because 
he  has  abandoned  it,  and  does  not 
mean  to  register  it  at  all.  For,  in 
that  case,  though  his  Lordship  de- 
clared '  the  answer  loose,'  and  that 
there  were  strong  circumstances  of 
notice,  he  yet  dismissed  the  bill  upon 
'  that  part  of  the  case.  That  the  doc- 
trine of  that  case  is  correctly  under- 
stood as  here  represented,  is,  we  think, 
clearly  to  be  collected  from  what  has 
been  said  in  subsequent  cases,  after 
the  subject  had  been  long  and  tho- 
roughly considered.  In  Wyatt  v. 
Barii-dl,  19  Vesey,  435,  the  Master- 
of  the  Rolls,  after  mentioning  the 
doubts  entertained  of  the  propriety  of 
having  suffered  the  question  of  notice 
to  be  agitated  against  one  who  had 
registered  his  deed,  proceeds  to  state 
what  he  considered  the  rule,  thus  : — 
The  courts  have  said,  we  cannot  per- 
mit fraud  to  prevail,  and  it  shall  only 
be  in  cases  where  the  notice  is  so 
clearly  proved  as  to  make  it  fraudu- 
lent in  the  purchaser  to  take  and  re- 
gister a  conveyance  in  prejudice  of 
the  known  title  of  another,  that  we 
will  suffer  the  registered  deed  to  be 
affected.  Even  with  that  limitation, 
he  thought  the  efficacy  of  the  register 
acts  considerably  lessened,  as  no  one 
can  tell  what  may  truly  or  falsely  be 
given  in  evidence,  or  what  may  be 
the  effect  of  the  evidence  in  th'e  mind 
of  the  judge.  But  finally,  he  con- 
cludes by  saying  that  it  is  only  by 
actual  notice,  clearly  proved,  that  a 
registered  conveyance   can    be    post- 


poned, and  that  even  a  Us  pendens 
will  not  amount  to  notice  for  that  pur- 
pose. Again,  in  the  previous  case  of 
Jelland  v.  Stainhridge,  3  Vesey,  jun. 
478,  regret  is  expressed  that  the  sta- 
tute had  been  broken  in  upon  by  parol 
evidence,  and  the  satisfaction  of  the 
judge,  that  Lord  Ilardwicke,  as  he 
understood  him,  had  in  Hine  v.  Dodd, 
said,  that  'nothing  short  of  actual 
fraud  would  do.'  And  what  the 
Master  of  the  Rolls  deemed  fraud  in 
this  case,  we  cannot  misunderstand, 
when  we  find  him  saying,  *  it  is  clear 
that  it  must  be  satisfactorily  proved, 
that  the  person  who  registers  the  sub- 
sequent deed  must  have  known  the 
situation  of  the  persons  having  the 
prior  deed,  and  knowing  that,  regis- 
tered, in  order  to  defraud  them  of  that 
title  he  knew  at  the  time  was  in  them.' 
These  cases  leave  no  doubt  of  the 
kind  of  notice,  or  fraud  on  the  prior 
encumbrance  which  will  reinstate  him 
in  his  preference.  It  is  called  some- 
times 'actual  notice'  to  be  clearly 
proved,  and  sometimes  '  exact  know- 
ledge' of  the  situation  of  the  parties. 
From  which  it  would  seem  to  follow, 
that  such  notice  of  the  contents  of  the 
instrument,  as  to  the  subject  and  pur- 
poses of  the  conveyance,  and  of  the 
intention  to  rely  on  it  as  a  conveyance, 
must  substantially  reach  the  party  in 
jmis,  as  would  be  derived  upon  those 
points  from  the  registry  itself.  We 
do  nobmean  that  information  precisely 
correct  as  to  every  thing  conveyed,  or 
as  to  the  amount  of  each  debt  secured, 
would  be  necessary  to  give  any  effect 
to  the  deed,  but  that,  at  most,  it  could 
only  be  set  up  against  the  subsequent 
purchaser  for  such  purposes  as  it  was 
distinctly  represented  to  him  as  in- 
tended  to  effect,  and  effecting,  and 


LE     NEVE     V.      LE     NEVE. 


191 


that  such  representations  must  at  least 
he  true  as  far  as  they  go,  and  convey 
something  like  the  real  contents  of 
the  instrument.  Without  information 
to  that  extent,  there  can  be  no  impu- 
tation of  fraud,  by  taking  a  deed  in 
order  to  defeat  the  former  one." 

Similar  principles  were  applied  by 
the  Supreme  Court  of  Pennsylvania, 
in  Scott  V.  Gallagher,  14  S.  &  R.  333, 
where  it  was  held  that  to  affect  a  pur- 
chaser of  a  legal  title,  duly  recorded, 
with  notice  of  a  secret  trust  unre- 
corded, the  notice  must  be  express 
and  positive,  and  it  was  consequently 
decided,  that  where  the  grantor  of 
land  by  deed  recorded,  continued  in 
possession  under  a  declaration  of  trust 
from  the  grantee,  which  was  not  re- 
corded, his  possession  was  not  suffi- 
cient evidence  of  notice,  as  against  a 
subsequent  purchaser  who  lived  at  a 
distance,  and  appeared  not  to  have 
had  actual  notice.  It  is  a  doctrine  of 
equity,  said  Rogers,  J.,  in  delivering 
the  opinion  of  the  court  in  this  case, 
"  that  if  one  of  two  innocent  persons 
must  suffer,  he  who  has  been  the  cause 
must  bear  the  loss ;"  and  he  went  on 
to  declare  that  a  purchaser  from  a 
vendee,  claiming  under  a  deed  duly 
recorded,  "  is  not  bound  to  call  on  the 
person  in  possession  of  the  land,  to 
inquire  of  him  whether  he  has  a  secret 
agreement  with  the  owner  of  the  legal 
title.  If  there  be  an  agreement,  it  is 
the  duty  of  the  tenant  in  possession  to 
spread  it  upon  the  records  of  the 
county,  in  order  to  prevent  innocent 
purchasers  from  being  deceived.  A. 
sells  a  tract  of  land  to  B.,  and  retains 
the  possession.  B.  sells  to  C.  :  C.  is 
not  bound  to  call  on  A.  to  know 
whether  there  is  not  a  secret  agree- 
ment adverse  to  the  deed  from  A.  to  B. 


between  them.  He  would  be  bound 
only  by  those  agreements  which  are 
consistent  with  the  deed."  This  de- 
cision might  have  been  limited  to  the 
single  point,  that  where  a  party  has 
put  a  title  of  record,  he  cannot  con- 
tradict it  by  evidence  of  an  inconsis- 
tent possession,  as  against  an  innocent 
purchaser,  who  has  bought  on  the 
faith  of  the  record.  And  in  the  re- 
cent case  of  Hood  v.  Falmestock,  1 
Barr,  470,  477,  Scott  v.  Gallagher, 
was  said  to  rest  on  the  ground,  that 
although  possession  may  be  con- 
structive notice  of  equities  founded 
on  parol  agreements,  or  transactions 
in  pais,  it  cannot  have  that  effect  in 
favor  of  persons  claiming  under  a 
written  agreement  or  instrument, 
which  might  have  been  recorded. 
But  the  reasoning  of  the  court,  as 
above  cited,  is  hardly  susceptible  of 
either  limitation,  and  lays  down  the 
principle,  that  whenever  one  man  has 
chosen  to  leave  his  title  to  land  at  the 
mercy  of  the  good  faith  of  another, 
the  loss  occasioned  by  a  subsequent 
fraudulent  conveyance  shall  fall  upon 
him,  and  not  on  a  purchaser,  unless 
shown  to  have  been  guilty  of  fraud, 
or  fraudulent  connivance.  And  in 
Flagg  v.  Mann,  2  Sumner,  556;  Scott 
V.  Gallagher,  was  treated  as  support- 
ing the  general  doctrine,  that  the  pro- 
tection afforded  by  the  registry  acts 
is  not  to  be  done  away  with,  by  notice 
of  secret  equities,  whether  created  by 
writing  or  in  any  other  manner,  unless 
such  notice  is  actual,  and  not  merely 
constructive.  A  similar  view  was 
taken  in  Siter  v.  Ji'  Clanachan,  2 
Grattan,  280,  313,  where  the  court 
held  that  it  is  not  sufficient  to  show 
that  the  purchaser  was  made  acquaint- 
ed with  facts  of  a  nature  to  put  him 


192 


NOTICE. 


on  inquiry,  unless  the  information  was 
so  strong  and  clear  as  to  raise  a  pre- 
sumption of  mala  fides. 

la  Bogys  v.  Varner,  6  W.  &  S. 
4G9,  474,  strong  ground  was  taken 
against  allowing  a  purchaser  to  be  de- 
prived of  the  benefit  of  the  recording 
acts,  by  any  evidence  which  is  not 
sufficient  to  prove  a  want  of  good  faith, 
if  not  actual  fraud.  "  The  record- 
ing acts  are  specially  intended,"  said 
Rogers,  J.,  in  delivering  the  opinion 
of  the  court,  "  for  the  protection  of 
purchasers,  and  they  would  be  of  pro- 
blematical benefit,  if  a  jury  were  al- 
lowed to  act,  or  draw  inferences  to  his 
prejudice,  on  such  loose,  unsatisfac- 
tory testimony.  The  provisions  of  the 
act  may  be  easily  complied  with,  and 
at  but  little  expense,  so  that  owners 
are  left  without  excuse,  and  if  they 
will  neglect  their  duty  in  this  parti- 
cular, it  is  but  just  that  the  conse- 
quences be  visited  on  their  heads.  A 
court  of  equity  acts  on  the  conscience, 
and  as  it  is  impossible  to  make  any 
demand  on  the  conscience  of  a  man 
who  has  purchased  for  valuable  con- 
sideration, hona  fide  and  without  no- 
tice of  any  claim  on  the  estate,  such  a 
man  is  entitled  to  the  peculiar  favor 
of  a  court  of  equity.  As  every  pre- 
sumption is  in  favor  of  the  subsequent 
purchaser,  when  the  former  owner  is 
guilty  of  neglect,  his  title  cannot  be 
postponed  except  by  evidence  which 
taints  his  conduct  with  fraud.  And 
this,  it  is  obvious,  ought  not  to  be 
done  by  testimony  in  its  nature,  vague 
and  indefinite,  and  leading  to  no  cer- 
tain results,  such  as  that  he  ought  to 
have  known  of  the  prior  title,  because 
he  lived  near  the  owner,  in  the  same 
town,  perhaps,  or  on  the  next  lot,  that 
he  was  well  acquainted  with  him,  or 


because  the  title  was  well  known  to 
others.  This  may  well  be  true,  and 
yet,  at  the  time  he  pays  his  money, 
he  may  be  ignorant  of  any  other  title 
than  his  own.  It  is  not  just,  that  in- 
ferences should  be  strained  in  favor  of 
the  person,  by  whose  default  the  mis- 
chief has  been  done." 

But  the  language  held  by  the 
courts  of  Pennsylvania  on  this  sub- 
ject, has  not  always  been  uniform, 
and  several  cases  may  be  found,  in 
which  notice  merely  constructive  has 
been  treated  as  sufficient  against  a 
deed  truly  recorded,  in  the  absence 
of  actual  notice.  Thus  in  Carrey  v. 
Caxton,  4  Binney,  40,  a  strong  opi- 
nion was  intimated  by  Duncan,-  J., 
that  the  doctrine  of  constructive  no- 
tice, was  fully  applicable  in  cases, 
within  the  recording  acts ;  and  the 
decisions  are  numerous,  in  which  pur- 
chasers have  been  deprived  of  the 
protection  which  those  acts  afford 
against  unrecorded  conveyances,  on 
the  ground  that  the  want  of  registry 
was  supplied  by  actual  possession 
Kr^dcr  v.  Lafferfi/,  1  Wharton,  303 
Randall  v.  Silrerthorn,  4  Barr,  173 
supra,  144.  A  similar  uncertainty 
and  fluctuation  of  opinion  will  be 
found  pervading  the  decisions  in  New 
York.  It  was  held  in  Dey  v.  Dun- 
ham, 2  Johnson,  Ch.  162,  that,  to 
let  in  an  unrecorded  mortgage  on  one 
duly  recorded,  there  must  be  proof  of 
fraud,  or  such  actual  notice  as  would 
make  the  conduct  of  the  second  mort- 
gagee equivalent  to  a  fraud.  This  de- 
cision was  overruled  on  appeal  by  the 
Court  of  Errors,  15  Johnson,  555,  on 
the  ground  that  the  evidence  showed 
actual  notice;  but  the  general  prin- 
ciple laid  down  by  the  chancellor  in 
the  court  below,  was  left  untouched. 


LE     NEVE     V.     LE     NEVE. 


193 


The  same  ground  was  takeu  iu  Jack- 
son V.  Burgott,  10  Johnson, 457;  Jack- 
son V.  Given,  8  Id.  137 ;  Jackson  v. 
Ebston,  12  Id.  452 ;  and  Jackson  v. 
Van  Yulkcnhurcjh,  8  Cowen,  260. 
But  iu  Tuttle  V.  Jackson,  6  Wend. 
213,  it  was  held  by  the  Court  of  Er- 
rors, overruling  the  decision  of  the 
court  below,  in  Jackson  v.  Tattle,  9 
Cowen,  233,  that  the  registry  acts 
have  made  no  change  in  the  doctrine 
of  notice,  and  that  a  purchaser  by 
deed  duly  recorded,  will  be  postponed 
to  all  prior  deeds  or  equities,  of  which 
he  had  actual  or  constructive  notice 
at  the  time  of  the  purchase.  Similar 
decisions  were  made  in  Govemevr 
V.  Lyncli,  2  Paige,  300,  and  De  R(i>/- 
ter  V.  TIlc  Trustees  of  St.  Peter  s,  2 
Barbour,  Ch.  556.  And  in  the  case 
of  Grimstone  v.  Carter,  3  Paige, 
421,  it  was  decided  that  whatever 
doubt  may  exist,  where  the  question 
is  as  between  an  unrecorded  deed  and 
one  duly  recorded,  there  can  be  none, 
where  it  relates  to  equities  arising 
without  deed,  which  were  said  to  be 
wholly  without  the  scope  and  opera- 
tion of  the  recording  acts.  In  that 
case  the  complainant  had  conveyed 
absolutely  to  one  Carter,  subject  to  a 
parol  trust  for  a  re-conveyance,  under 
which  he  had  retained  possession  of 
the  premises,  and  the  defendants  had 
purchased  with  full  knowledge  of  his 
possession,  in  reliance  upon  the  deed 
to  Carter,  and  his  statement,  that  the 
complainant  was  a  mere  tenant  at  suf- 
ferance. Under  these  circumstances 
the  vice-chancellor  decided,  that  the 
defendants  were  protected  by  the  re- 
cording acts,  and  that  nothing  short 
of  actual  notice  could  deprive  them 
of  that  protection.  But  this  decision 
was  reversed  by  the  chancellor,  on  the 
VOL.  II. — 13 


ground  that  the  provisions  of  these 
acts  were  not  applicable  to  the  case 
before  him.  ''  I  apprehend,"  said  he, 
"  that  the  vice-chancellor  is  under  a 
mistake  in  supposing,  that  this  is  a 
question  of  notice  under  the  record- 
ing act.  The  object  of  that  statute 
was  to  protect  a  subsequent  hona  fide 
purchaser  against  a  previous  convey- 
ance of  the  legal  estate,  or  of  some 
part  thereof;  and  which  conveyance 
would  be  valid  as  against  the  subse- 
quent purchaser  or  mortgagee,  if  the 
recording  act  had  not  been  passed. 
But  a  subsequent  hona  fide  purchaser 
needed  not  the  aid  of  the  registry  act, 
to  protect  him  against  a  prior  equity 
or  a  mere  agreement  to  convey.  Hav- 
ing the  legal  title  under,  his  convey- 
ance, he  would  be  able  to  defend  his 
title  at  law;  and  the  plea  that  he  was 
a  hona  fide  purchaser  for  a  valuable 
consideration,  would  afford  him  a  full 
protection  against  an  equitable  claim, 
of  which  he  had  no  previous  notice. 
In  the  case  under  consideration,  the 
legal  estate  was  absolutely  vested  in 
Carter  by  the  deed  of  July,  1830,  and 
although,  by  the  executory  agreement 
to  reconvey,  such  deed  in  equity  was 
nothing  but  a  mortgage  as  to  the  north 
half  of  lot  No.  54,  yet  a  hona  fide  pur- 
chaser from  the  holder  of  the  absolute 
deed  would  have  been  protected  both 
at  law  and  in  equity,  if  no  recording 
act  had  ever  passed ;  Whittick  v. 
Kaine,  1  Paige's  Rep.  202.  There- 
fore, as  to  the  equitable  claim  of  this 
complainant,  it  was  perfectly  imma- 
terial whether  the  deed  from  him  to 
Carter  was  recorded  or  otherwise. 
The  only  benefit  to  be  derived  from 
the  recording  of  that  deed,  would  be 
to  protect  the  purchaser  claiming 
under  the  same  against   the   subse- 


194 


NOTICE. 


quent  grantee  of  the  complainant,  who 
might,  perhaps,  become  a  purchaser 
of  the  property,  without  notice  of  the 
existence  of  such  a  deed.  If  that 
deed  could  be  considered  as  coming 
within  the  provisions  of  the  third  sec- 
tion of  the  recording  act,  (1  R.  S. 
756,)  so  as  to  constitute  the  relation 
of  mortgagor  and  mortgagee  between 
the  complainant  and  Carter,  no  benefit 
could  be  derived  from  the  recording 
thereof  J  because  it  was  not  recorded 
in  the  book  of  mortgages.  Neither 
was  the  writing  explanatory  of  it,  be- 
ing designed  only  to  have  the  effect 
of  a  mortgage  recorded  with  it,  and 
at  the  same  time.  The  object  of  that 
section  of  the  statute,  was  to  protect 
hona  fide  purchasers  from  the  mort- 
gagor. It  is,  therefore,  the  duty  of 
the  person  who  receives  such  a  mort- 
gasre  to  have  the  defeasance  recorded 
with  his  absolute  deed  in  the  book  of 
mortgages;  otherwise  he  derives  no 
benefit  from  the  recording  such  deed. 
But  the  rights  of  the  mortgagor  are 
the  same,  whether  the  deed  and  de- 
feasance, which  constitute  the  mort- 
sasre,  are  recorded  or  not. 

"  I  apprehend,  however,  that  at  law, 
this  must  be  considered  as  an  absolute 
and  valid  conveyance  of  the  whole  lot 
with  an  agreement  to  resell  and  re- 
convey  the  north  half,  upon  the  terms 
and  conditions  specified  in  the  con- 
tract. And  such  an  agreement  being 
a  mere  equitable  claim  upon  the  estate, 
which  could  not  afl'ect  the  title  of  a 
hona  fide  purchaser  without  notice,  is 
expressly  excepted  from  the  provi- 
sions of  the  statute  requiring*  convey- 
ances to  be  recorded.  (R.  S.  762, 
§38.)  This  is  undoubtedly  a  hard  case 
for  the  purchasers,  who  supposed  they 
were  getting  a  good  title.    But  as  the 


complainant  was  not  aware  of  the  ne- 
gotiation for  the  purchase  of  the  pro- 
perty, and  therefore  had  no  opportu- 
nity to  apprise  them  of  his  equitable 
claim  to  a  reconveyance  of  the  north 
half  of  the  lot,  it  would  be  equally 
hard  to  deprive  him  of  his  property, 
without  consideration.  They  were 
informed  that  he  was  in  possession 
which,  by  the  settled  law  of  the  land, 
was  sufiieient  to  put  them  on  inquiry, 
and  to  deprive  them  of  the  defence  of 
hona  fide  purchasers,  without  notice 
of  his  rights.  And  they,  in  the  lan- 
guage of  Lord  Eldon,  having  neglect- 
ed to  take  the  obvious  precaution  of 
inquiring  as  to  the  nature  and  extent 
of  the  tenant's  interest  in  the  pro- 
perty, must  suffer  the  consequences 
of  their  neglect." 

The  constructive  notice  arising  from 
possession,  was  also  held  sufficient  to 
postpone  deeds  duly  recorded,  to  equi- 
ties or  deeds  unrecorded,  in  Colhy  v. 
Kinniston,  4  New  Hampshire,  262  j 
Brown  V.  Anderson,  1  Monroe,  198  ; 
Buck  V,  IfoUowai/' s  Devisee,  2  J.  J. 
Marshall,  180 ;  Hopkins  v.  Garrard, 
7  B.  Monroe,  312 ;  Colbi/  v.  Kennis- 
ton,  4  New  Hampshire,  262  ;  Troulp 
V.  SurJhut,  10  Barbour,  354 ;  Krider 
V.  Lafferty,  1  Wharton,  303 ;  Wehster 
V.  Maddox,  6  Maine,  256;  Knox  v. 
Plummer,  7  Id.  464 ;  Griswold  v. 
Smith,  10  Vermont,  452 ;  Walker  v. 
Gilhert,  1  Freeman,  85;  Rupert  v. 
Mark,  15  Illinois,  540 ;  Doyle  v.  Teas, 

4  Scammon,  202  ;  Baynard  v.  Norris, 

5  Gill,  483;  Price  v.  McDonald,  1 
Maryland,  403 ;  Wyatt  v.  Elam,  19 
Georgia,  335;  while  in  Landes  v. 
Brant,  10  Howard,  348,  the  Superior 
Court  of  the  United  States,  gave  the 
weight  of  their  authority  to  the  gene- 
ral proposition,  that  the  constructive 


LE     NEVE     V.     LE     NEVE. 


195 


notice  derived  from  possession,  will 
give  an  unrecorded  deed  priority  over 
a  subsequent  purchaser  by  deed  duly 
recorded.  A  similar  view  was  taken 
in  the  recent  case  of  Williamson  v. 
Brown,  15  NewYork  R.  354 ;  although 
the  court  were  clearly  of  opinion,  that 
the  presumption  against  the  purchaser 
might  be  rebutted  by  proof,  that  he 
exerted  himself  unavailingly  to  ascer- 
tain the  truth,  and  had  no  reason  to 
believe  that  further  effort  would  have 
been  more  successful.  The  pre- 
sumption of  notice  arising  from  pos- 
session, was  also  held  open  to  disproof 
or  rebuttal,  where  the  recording  acts 
are  in  question,  in  Cook  v.  Travis, 
22  Barb.  338,  and  Flagg  v.  Ilann,  2 
Sumner,  486 :  while  in  Vaughan  v. 
Tract/,  22  Missouri,  415,  possession 
was  said  to  be,  in  such  cases,  mere 
evidence  for  the  jury,  and  not  to 
warrant  an  inference  of  notice. 

The  ground  taken  in  Grimstone  v. 
Carter,  that  equities  not  arising  by 
deed,  are  not  within  the  scope  or  opera- 
tion of  the  recording  acts  of  this  coun- 
try and  England,  is  truer  literally, 
than  upon  liberal  principles  of  con- 
struction. It  must  be  admitted  that 
such  equities  are  not  within  the  ex- 
press words  of  those  acts,  which  only 
provide  that  conveyances  shall  be  re- 
corded, and  that  those  which  are  not, 
shall  be  postponed  to  those  which  are. 
But  it  is  evident  that,  so  far  as  the 
object  of  requiring  registration  is  to 
protect  purchasers  in  good  faith,  and 
give  simplicity  and  certainly  to  the 
title  to  real  estate,  it  must  be  frustrated 
whenever  secret  trusts  or  equities, 
whether  arising  by  deed  or  without  it, 
are  allowed  to  prevail  against  convey- 
ances duly  recorded.  More  weight 
may  be  due  to  the  distinction  taken 


by  Rogers,  J.,  in  Hood  v.  FalinestocJc, 
1  Barr,  470,  476,  that  the  holder  of 
an  equity  created  by  deed  is  in  default 
in  not  recording  his  deed,  but  that 
such  is  not  the  case  where  the  equity 
has  its  origin  in  a  verbal  agreement, 
or  by  operation  of  law  or  equity,  and 
is  therefore  insusceptible  of  being  re- 
corded. Still,  it  must  be  remembered 
that  no  equity  is  superior  to  that  of  a 
purchaser  in  good  faith,  and  for  valu- 
able consideration,  and  that  if  the 
operation  of  the  recording  acts  is  to 
be  limited  to  questions  arising  between 
recorded  and  unrecorded  mortgages 
and  conveyances,  they  must  fail  in 
affording  protection  to  purchasers  in  a 
majority  of  the  cases  where  they  most 
stand  in  need  of  protection,  for  the 
instances  in  which  the  existence  of  a 
preceding  deed  is  concealed,  by  a  ven- 
dor, are  much  fewer  than  those  in 
which  there  has  been  some  anterior 
dealing  with  the  land,  of  a  nature  to 
raise  an  equity,  which  he  does  not 
consider  as  binding,  and  does  not, 
therefore,  communicate  to  the  vendee. 
Nor  can  any  view  of  this  question, 
which  is  confined  to  the  relation  sub- 
sisting between  the  parties  to  the  con- 
veyance, be  sufficiently  comprehensive 
for  the  purposes  of  truth.  The  good 
or  ill  influence  of  a  decision  on  title, 
can  only  be  measured  by  its  effect  on 
the  community.  The  value  of  real 
estate  to  the  public,  as  well  as  to  in- 
dividuals, depends  in  a  great  measure, 
in  this  country,  on  the  facility  and 
certainty  with  which  it  can  be  made 
the  subject  of  transfer  and  purchase. 
Our  system  of  registration  aims  at  ac- 
complishing this  object,  by  placing  a 
faithful  transcript  of  private  titles  on 
the  public  records.  And,  whatever 
tends  to  impair  or  diminish  the  com- 


196 


NOTICE. 


pleteness,  or  utility  of  this  transcript, 
is  a  public  injury.  Even  if  the  doc- 
trine advanced  in  Grimstone  v.  Carter, 
can  be  sustained  as  to  equities  arising 
by  construction  of  law  without  deed, 
it  would  seem  wholly  inapplicable  to 
those  which  arise  out  of  instruments 
in  writing,  of  such  a  nature  as  to  be 
susceptible  of  being  recorded.  If  an 
equity  need  not  be  recorded,  the 
record  will  not  be  notice  if  made ; 
Walker  v.  Gilbert,  1  Freeman,  Ch. 
381 ;  and  equities  will  thus  be  placed 
at  a  disadvantage  on  the  one  hand, 
Avhile  obtaining  an  undue  preference 
on  the  other.  The  better  opinion 
would  consequently  seem  to  be,  that 
the  registry  of  a  grant  of  an  equitable 
interest,  or  of  an  agreement  by  which 
it  is  called  into  being,  will  operate  as 
notice  to  subsequent  purchasers,  either 
of  the  legal  or  equitable  estate;  and 
that  equities  which  thus  lie  within 
the  protection  of  the  recording  acts ; 
Bellas^  V.  M'Carfy,  10  Watts,  13,  25, 
will  also  fall  within  their  penalties, 
and  be  void  unless  put  on  record, 
against  bona  fide  purchasers  for  value, 
by  deed  duly  recorded.  But  the  lan- 
guage held  by  the  Supreme  Court  of 
Pennsylvania,  on  other  occasions, 
would  seem  to  show  that  the  pur- 
chaser of  an  equity  arising  by  deed, 
duly  recorded,  is  aftccted  with  notice 
of  all  equities  which  attached  to  it  in 
the  hands  of  the  vendor,  although 
created  by  instruments  not  recorded; 
ante,  IGl;  andif  so,  it  must  follow  that, 
even  if  recording  the  conveyance  of 
an  equity,  operates  as  notice,  a  failure 
to  record  it  will  not  endanger  the 
holder,  unless  in  the  event  of  the  sub- 
sequent union  of  the  legal  and  equit- 
able estate  in  the  hands  of  a  bona  fide 
purchaser. 


One  singular  and  anomalous  result 
of  this  course  of  decision  is,  to  place 
executory  contracts  resulting  in  mere 
equities,  on  a  better  footing  than  those 
rights  or  estates  which  have  been  per- 
fected with  all  the  form  and  solemni- 
ties known  to  the  common  law,  and 
to  give  the  holder  of  an  equitable 
mortgage,  or  of  an  equity  growing  out 
of  a  contract  of  sale  and  not  recorded, 
a  superiority  over  subsequent  creditors 
and  purchasers,  which  would  be  de- 
nied to  a  mortgao;e  which  bound  the 
legal  title,  or  a  sale  consummated  by  a 
•  conveyance,  unless  placed  on  record ; 
Alexander  v.  Ghiselin,  5  Gill,  138, 
180;  Grimstone  v.  Carter.  This 
would  seem  a  manifest  departure  from 
the  simplicity  and  certainty  which 
the  recording  acts  were  designed  to 
aflPord,  and  which  cannot  be  attained 
without  protecting  purchasers  against 
every  antecedent  right,  which  is  not 
duly  entered  on  the  record,  or  brought 
home  to  them  by  some  form  of  notice, 
sufficiently  direct  and  certain  to  leave 
no  doubt  that  they  knew  or  purposely 
ignored  its  existence ;  The  Ohio  Ins. 
Co.  V.  Ross,  2  Maryland  Ch.  Deci- 
sions, 25. 

As  an  equity  is  invalid  without 
notice,  as  against  purchasers  for  value, 
and  notice  will  supply  the  want  of 
registry,  the  question  whether  equities 
must  be  recorded  would  be  of  little 
practical  importance,  were  it  not  that 
while  notice  must  be  actual  in  many 
of  the  states  of  this  country,  in  cases 
under  the  recording  acts,  construc- 
tive notice  is  every  where  held  suffi- 
cient to  charge  the  conscience  of  a 
purchaser  where  these  acts  are  inap- 
plicable, or  when  the  circumstances 
are  not  such  as  to  call  them  into  opera- 
tion. 


LE     NEVE     V.     LE     NEVE. 


197 


Whatever  may  be  the  effect  of  con- 
structive notice  on  a  deed  duly  re- 
corded, in  the  absence  of  actual  notice, 
there  is  no  reason  to  doubt  that  the 
facts,  or  circumstances,  which  go  to 
make  up  constructive  notice,  must  be 
allowed  their  full  weight  as  evidence 
of  actual  notice.  Thus,  where  a  party 
is  in  manifest  and  actual  possession  of 
land,  claiming  an  equity  under  a  parol 
contract,  or  even  a  resulting  trust 
under  his  own  deed,  such  possession 
may  be  evidence  of  actual  notice,  as 
against  his  neighbors  or  visiters  at  his 
house,  although  not  against  strangers 
or  persons  residing  at  a  distance; 
Harris  v.  Arnold,  1  Rhode  Island, 
125;  Vaughn  v.  Tracy,  22  Missouri, 
415.  And  in  this  way  the  cases 
of  Scott  V.  Gallagher,  and  Grimstone 
V.  Carter,  which  at  first  sight  appear 
essentially  adverse,  may  be  reconciled 
in  fact,  if  not  in  principle ;  possession 
having  been  brought  home  to  the 
knowledge  of  the  purchaser  in  the 
latter  case,  and  not  in  the  former. 

The  cases  in  New  York  and  Penn- 
sylvania, when  considered  as  a  whole, 
seem  to  make  the  English  doctrine 
as  to  notice  of  equities,  fully  appli- 
cable to  cases  arising  under  the  re- 
cording acts  of  this  country,  and  to 
preclude  a  purchaser  affected  with 
presumptive  notice,  from  showing  that 
in  point  of  fact  he  had  no  actual  no- 
tice, although,  when  the  notice  relied 
on  is  actual,  and  not  presumptive,  the 
proof  must  be  extremely  clear,  in  order 
to  charge  him  eith  er  at  law  or  in  equity ; 
Fort  v.  Burch,  6  Barbour's  S.  C.  R. 
60.  The  necessary  result  of  the  dis- 
tinction thus  taken  between  actual 
and  constructive  notice,  is  to  deprive 
purchasers  of  the  protection  of  the  re- 
cording acts,  on  the  ground  of  legal 


fraud,  in  cases  where  there  is  an  entire 
absence  of  actual  fraud,  while  leaving 
them  in  possession  of  the  property 
purchased,  whenever  actual  fraud, 
however  gravely  suspected,  cannot  be 
made  out  with  the  utmost  certainty  of 
legal  proof.  On  the  latter  point,  this 
course  of  decision  is  obviously  just, 
but  on  the  former  it  would  seem  open 
to  the  objection  of  applying  the  highly 
artificial  set  of  presumptions,  which 
are  necessary  to  sustain  the  peculiar 
and  delicate  system  of  equitable  estates 
in  England,  to  a  legislative  enactment 
which  was  designed  to  give  simplicity 
to  titles,  and  safety  to  purchasers,  and 
not  to  involve  them  in  the  doubts  and 
practical  uncertainties  of  English  con- 
veyancing. 

In  Fleming  v.  Toivnsend,  6  Geor- 
gia, 103,  the  court  held  that,  in  order 
to  postpone  a  purchaser  in  cases  aris- 
ing under  the  27  Eliz.  c.  4,  to  a  prior 
voluntary  purchaser,  the  notice  of 
the  prior  purchase  must  be  actual, 
and  not  merely  constructive;  and  it 
was  decided  that  a  conveyance  to  the 
children  of  the  grantor,  duly  recorded, 
but  without  valuable  consideration, 
was  void  as  against  a  subseqent  pur- 
chaser for  value.  The  conveyance  in 
this  case  was  of  personal  property,  and 
it  was  manifestly  invalidated  by  fraud, 
but  the  position  taken  by  the  court  is 
interesting,  as  sustaining  the  position, 
that  when  notice  is  relied  on  to  inva- 
lidate a  right  which  would  be  legally 
absolute  without  notice,  it  should  be 
so  far  actual  as  to  affect  the  conscience 
of  the  party  against  whom  it  is  charged, 
and  not  rest  in  a  mere  legal  intend- 
ment or  presumption. 

The  purchaser  of  a  chose  in  action  or 
of  goods  and  chattels,  is  ordinarily  li- 
mited to  the  interest  of  the  person  from 


198 


MARSHALLING     ASSETS. 


whom  he  buys^  ante,  75 ;  and  antece- 
dent rights  or  equities,  are  therefore 
in  general  equally  binding  upon  him, 
whether  he  is  or  is  not  aware  of 
their  existence.  When,  however,  a 
purchaser  buys  a  chattel,  or  chose  in 
action,  in  reliance  upon  a  right  or 
authority,  which,  like  that  of  an  exe- 
cutor or  general  agent,  is  lyrima  facie 
sufficient  to  confer  a  good  title,  it  may 
be  material  to  inquire  whether  he  knew 
of  a  limitation  or  circumstance,  by 
which  its  exercise  was  rendered  void 
or  wrongful  in  the  particular  instance ; 
and  under  these  circumstances  there 
may  be  full  scope  for  the  application  of 
the  principles  and  distinctions,  which 
elucidate  or  perplex  the  law  of  no- 
tice ;  and  it  has  accordingly  been  said, 
that  those  who  buy  from  an  executor 
ought  to  inform  themselves  of  every- 


thing which  appears  on  the  face  of 
the  will ;  and  will,  therefore,  take  no 
title,  if  the  sale  be  made  in  violation 
of  any  of  its  trusts  or  provisions; 
Graff  V.  Castleman,  5  Randolph, 
195*;  Pendleton  v.  Fay,  2  Paige,  202  ; 
Christmas  v.  Mitchell,  3  Iredell's  Eq. 
535.  But  although  the  soundness  of 
this  principle  may  be  unquestionable, 
it  must,  notwithstanding,  be  remem- 
bered that  an  executor  has  an  author- 
ity to  dispose  of  the  assets  derived 
from  the  law,  which  is  in  some  mea- 
sure paramount  to  the  will  of  the  tes- 
tator, and  that  nothing  can  operate  as 
notice,  which  does  not  show  that  he 
is  acting  in  violation  of  the  duties  in- 
cident to  his  office,  as  well  as  of  the 
restrictions  and  limitations  sought  to 
be  imposed  by  the  will;  ante,  vol.  1, 
p.  131. 


MARSHALLING  ASSETS. 

[  *56]  *ALDRICH  v.  COOPER. 

DURHAM  V.  LANKESTER. 
DURHAM  V.  ARMSTRONG. 

NOV.  24,  DEO.  7,  8,  10,  1802  ;  APRIL  26,  1803. 
REPORTED   8  VES.  382. 

Marshalling.] — Mortgagee  of  freehold  and  copyhold  estates,  also  a  specialty 
creditor,  having  exhausted  the  personal  assets,  simple  contract  creditors  are 
entitled  to  stand  in  his  place  against  both  the  freehold  and  the  copyhold 
estates,  so  far  as  the  peisonal  estate  has  been  taken  away  from  them  hy  such 
specialty  creditor. 

Mortgage  of  freehold  estate,  with  a  covenant  for  better  securing  the  payment, 
to  procure  admission  and  to  surrender  a  copyhold  estate,  and  in  the  mean- 
time to  stand  seised  in  trust  for  the  mortgagee.  A  primary  mortgage  of 
both  estates ;  and  the  freehold  nut  first  applicable. 

In  these  causes  the  usual  decree  was  made  for  an  account  of  what  was  due 
to  the  plaintiff  Aldrich,  a  simple  contract  creditor  of  the  intestate  John  Cooper, 


ALDRICH     V.     COOPER.  199 

and  all  other  the  creditors ;  and,  in  case  the  creditors  by  specialty  should  ex- 
haust any  part  of  the  personal  estate,  it  was  declared,  that  the  simple  contract 
creditors  were  entitled  to  stand  in  their  place,  &c. 

The  Master's  report  stated,  that  the  testator  died  seised  of  freehold  estates 
of  inheritance,  subject  to  a  mortgage  made  by  the  intestate,  by  indentures 
dated  the  6th  of  October,  1791,  for  1300?. ;  by  which  indentures  also,  for 
better  securing  the  payment,  he  covenanted  with  the  mortgagee  to  pi'ocure 
himself  to  be  admitted  to  copyhold  estates,  and  that  he  would  surrender  them 
to  the  mortgagee;  and  that,  *until  such  surrender,  he  would  stand  ^._-, 
seised  of  the  premises  in  trust  for  the  mortgagee.  L      '  -■ 

The  intestate  died  in  June,  1792,  not  having  been  admitted  to  the  copyhold 
estates,  leaving  five  sister  his  coheiresses-at-law,  who,  in  September,  1792, 
were  admitted  to  the  copyhold  estates  as  coheiresses  of  the  intestate,  and  imme- 
diately afterwards  surrendered  to  the  mortgagee  for  securing  what  was  due 
upon  the  mortgage  and  two  bonds  by  the  intestate  to  the  mortgagee.  The 
widow  of  the  intestate  took  out  administration,  and  paid  out  of  the  personal 
estate  767?.,  in  part  of  the  mortgage  and  bonds.  The  personal  estate  being 
exhausted,  when  the  cause  came  on  for  farther  directions,  a  question  arose, 
whether  the  creditors  hy  simple  contract  were  entitled  to  stand  in  the  jjlace 
of  the  specialty  creditors  in  respect  of  what  they  had  drawn  from  the  personal 
estate,  against  the  copyhold  as  well  as  the  freehold  estates. 

Mr.  Romilly,  for  the  plaintiff,  said,  that  if  the  question  as  against  the  copy- 
hold estate  could  be  considered  open,  the  principle  is,  that  where  a  creditor, 
who  has  two  funds,  chooses  to  resort  to  the  only  fund  upon  which  other  credi- 
tors can  go,  they  shall  stand  in  his  place  for  so  much,  against  the  fund  to 
which  they  otherwise  could  not  have  access ;  but  he  admitted  this  case  could 
not  be  distinguished  from  Rohinson  v.  Tonge} 

Mr.  Pigott,  for  the  coheiresses,  relied  upon  the  circumstance,  that  the  only 
act  as  to  the  copyhold  estate  was  the  covenant  for  farther  security  to  be  ad- 
mitted, and  to  surrender  to  the  mortgagee,  and  in  the  meantime  to  stand  seised 
in  trust  for  him ;  showing  the  intention,  that  the  freehold  estate  should  be 
first  applied  as  the  primary  fund, — the  copyhold  being  only  a  subsiduary 
security. 

Lord  Chancelllor  Eldon. — The  words,  "  for  better  securing  the  pay- 
ment," are  not  thrown  in  for  the  purpose  of  making  the  freehold  estate  appli- 
cable first;  but  the  common  form  of  a  mortgage  of  freehold  and  copyhold 

estates  is  to  make  the  freehold  liable,  with  a  ^covenant  to  surrender  ^  •  ^-,-. 

I  '"'obi 
the  copyhold,  in  order  to  save  the  fine.  ^        -^ 

It  is  necessary  to  look  into  the  case  that  has  been  cited.     Freehold  estates 

are  not  assets  for  simple  contract  debts  f  and  I  should  have  thought  the  same 

reasoning  that  governs  that  case  would  have  applied  to  this. 

1  Stated  in  Mr.  Cox's  note,  1  P.  Wms.  680,  5th  ed. 

2  But  see  now,  3  &  4  Will.  4,  c.  104. 


200  MARSHALLING     ASSETS. 

Olr.  Ro7niIIi/  aad  Mr.  Strafford  for  the  plaintiffs. — The  case  before  Lord 
Hardwicke  certainly  cannot  be  distinguished  from  this;  but  it  is  impossible 
to  support  that  case  upon  the  principles  xipon  which  the  Court  has  always  acted 
as  to  marshalling  assets.  That  case  is  not  reported  upon  this  point,  except  in 
Mr.  Cox's  note,  though  it  is  in  several  books  upon  others;  nor  has  the  point 
been  before  the  Court  in  any  other  case,  nor  the  ground  taken  by  Lord  Hard- 
wicke ever  acted  upon  in  any  other  instance.  The  principle  as  to  marshalling 
assets  is  stated  in  Lanoy  v.  The  Duke  of  Atliolj-  viz.,  that  if  a  creditor  has  two 
funds,  he  shall  take  his  satisfaction  out  of  that  fund  upon  which  another  credi- 
tor has  no  lien.  If  it  is  sufficient  to  say,  the  creditor  disappointed  had  no 
claim  in  law  or  equity  upon  the  fund,  that  would  be  an  answer  in  every  case. 
In  the  instance  of  a  simple  contract  creditor,  disappointed  by  the  specialty 
creditors  taking  payment  out  of  the  personal  estate,  he  has  no  claim  in  law  or 
equity  upon  the  real  estate.  So  a  legatee,  where  the  creditors  exhaust  the 
personal  estate,  has  no  claim  but  what  the  testator  gives  him.  In  Lanoy  v. 
The  Duke  of  Aihol,  the  case  is  put  of  a  mortgagee  of  two  estates,  and  a  sub- 
sequent mortgage  of  one  of  them  to  another  person ;  if  that  estate  is  insuffi- 
cient to  pay  both,  the  first  mortgagee  shall  be  compelled  to  take  satisfaction 
out  of  the  other  estate,  in  order  to  leave  to  the  second  mortgagee  that  upon 
which  alone  he  can  go.  The  same  argument  would  occur,  that  the  second 
morto-acee  had  contracted  only  for  a  security  upon  the  one  estate,  and  had  no 
claim  upon  the  other.  So  a  widow  is  entitled  to  her  paraphernalia,  though 
not  against  creditors ;  but  if  a  mortgagee  chooses  to  take  them  in  satisfaction 
r^ra-\  of  *liis  debt  by  bond  or  covenant,  a  court  of  equity  will  ascertain  the 
'■  value,  and  make  her  a  creditor  for  that  upon  the  mortgaged  estate  : 

Tippinfj  v.  Tippin<j^  Upon  what  ground,  if  Rohinson  v.  Tontje  is  right,  can 
she  stand  as  a  mortgagee  upom  the  real  estate  ?  The  distinction  is  clear,  upon 
Lntkiiia  v.  Leigh*  and  Forrci^ter  v.  Lord  Jjekfh^  that,  though  the  Court  will 
marshal  for  legatees  against  a  descended  estate,  they  will  not  against  a  devised 
estate;  but  they  shall  stand  in  the  place  of  a  mortgagee  for  what  he  takes  out 
of  the  personal  estate.  It  would  be  very  extraordinary  if  the  Court  would 
marshal  by  placing  a  legatee  in  the  situation  of  a  mortgagee  against  the  copy- 
hold estate,  and  would  not  do  that  for  creditors. 

Mr.  rirjott  and  Mr.  Fonhlanque  for  the  defendants. — These  are  the  copy- 
hold estates  of  an  intestate;  no  intention  is  demonstrated  to  subject  them  to 
debts  by  any  testamentary  disposition.  They  are  not  assets,  either  at  law  or 
in  equity :  not  liable  to  debts  farther  than  by  express  contract.  Rohinson  v. 
Tonye  is  not  inconsistent  with  the  cases,  considering  the  subjects  to  which 
they  apply.  Marshalling  is  confined  to  assets,  and  goes  no  further  than  the 
jurisdiction  over  them.  Copyhold  estate  is  not  a  subject  of  that  jurisdiction, 
specialty  creditors  having  no-  claim  upon  that,  as  they  have  upon  freehold 

1  Dec.  7,  8,  1802.  -  2  Atk.  44G. 

»  1  P.  Wins.  729.  ♦  Ca.  t.  Talh.  51.  5  Amb.  171. 


ALDRICH     V.     COOPER.  201 

estate,^  which  therefore  is  marshalled.  The  distinction  is,  that  the  specialty 
creditors  have  resort  to  the  one  fund,  and  not  to  the  other.  To  the  eifect  of 
making  the  copyhold  estate  bear  its  proportion  of  the  mortgage,  the  heir  is 
bound  by  Rohinson  v.  Tonge ;  but  the  Court  will  not  go  farther  than  to  pre- 
vent an  election  to  the  prejudice  of  other  claims  upon  the  freehold  estate.  It 
is  safer  to  adhere  to  a  case  so  precisely  in  point,  than  to  unsettle  this  question 
after  such  a  length  of  time,  because  in  other  cases  there  is  an  apparent  con- 
trariety of  principle.  There  is  no  case  in  which  that  has  been  brought  again 
before  the  Court,  much  less  has  that  authority  been  impugned.  In  all  the 
cases  that  have  been  put,  the  Court  was  applying  the  principle  of  marshalling 
assets.  That  phrase  implies  an  equitable  arrangement  of  two  funds  of  the 
description  of  assets.  *This  sort  of  case  must  have  arisen  repeatedly ; 
and  yet  there  is  no  instance  of  a  determination  the  other  way,  which  is  L  J 
evidence  of  the  general  understanding. 

Mr.  RnmilJy,  in  reply. — Robinson  v.  Tonge  is  certainly  a  very  great  autho- 
rity; but  it  is  to  be  observed,  that  it  was  decided  soon  after  Lord  Hard- 
wice  got  the  Great  Seal;  and  as  to  the  length  of  time,  and  the  acquiescence 
under  it  for  seventy  years,  during  sixty  years  of  that  time  it  was  utterly  un- 
known. Mr.  Cox,  when  he  published  his  first  edition  of  Peere  Williams,  had 
not  found  that  case,  and  it  was  not  published  till  1793.  There  is  no  instance 
of  its  having  been  admitted  or  cited  as  an  authority.  No  case  corresponding 
with  it  can  be  found;  neither  can  I  show  one  overruling  it.  There  is  com- 
plete silence  on  both  sides ;  but  that  is  in  favor  of  the  plaintiff,  as  it  is  not 
probable  that  a  note  would  be  taken  of  a  decision  establishing  no  new  doctrine 
but  merely  following  an  established  rule.  So,  it  must  be  supposed  there  have 
been  many  instances  of  marshalling  against  copyhold  estate.  It  is  objected, 
that  marshalling  is  merely  a  distribution  of  the  different  assets  by  such  an 
arrangement  as  will  satisfy  all  the  creditors,  and  that  copyhold  estate  is  not 
assets.  But  that  which  is  called  marshalling  is  merely  that  rule  with  respect 
to  the  two  funds,  stated  by  Lord  Hardwicke,  \n  Lanoy  v.  The  DuJce  of  Athol, 
and  is  called  marshaUinfj  assets,  merely  as  being  generally  applied  to  a  case  of 
assets.  But  the  doctrine  is  applied  to  other  cases,  where  the  parties  are  living, 
as  the  case,  mentioned  in  Lanoy  v.  The  Biike  of  Athol,  of  the  two  mortgages. 
So,  where  the  Crown,  by  an  extent,  has  taken  a  mortgaged  estate,  and  deprived 
the  mortgagee  of  his  security,  the  Court  of  Exchequer  has  marshalled  in  his 
favor  by  letting  him  stand  in  the  place  of  the  Crown  upon  other  funds  not 
comprised  in  his  mortgage.  Another  instance  is  the  case  of  a  surety,  who  is 
put  in  the  place  of  the  creditor  against  the  other  securities,  though  he  has  no 
charge  against  them.  That  is  the  common  equity  :  Tynt  v.  Tyat,"^  and  Ber- 
ing \.  Lord  Winchelsea  ;^  in  which  each  surety  had  given  a  *distinct 
security.     The  same  principle  is  applied  in  all  these  cases.  L        J 

1  Copyhold  as  well  as  freehold  estates  are  now  liable  to  the  payment  of  debts  both  by 
specialty  and  simple  contract.     See  3  &  4  Will.  4,  c.  104. 

2  2  P.  Wms.  542.  s  1  Cox,  318;  ante,  vol.  1,  p.  78, 


202  MARSHALLING     ASSETS. 

But  can  these  copyhold  estates  be  said,  in  any  just  sense,  not  to  be  assets? 
In  other  cases,  the  Court  does  not  proceed  against  assets.  Real  estate  is  not 
assets  for.  payment  of  simple  contract  debts.  It  must  be  contended,  that  even 
if  the  debtor  makes  the  copyhold  estate  assets,  the  Court  cannot  marshal.  Sup- 
pose he  surrendered  to  the  use  of  his  will,  and  devised  it  for  payment  of  spe- 
cialty debts,  can  there  be  a  doubt  that,  if  the  specialty  creditors  chose  to  take 
satisfaction  out  of  the  personal  estate,  the  simple  contract  creditors  would  be 
put  in  their  place  ?  Why  should  they  not,  then,  where  he  has  made  the  copy- 
hold estate  a  fund  for  the  payment  of  this  debt  by  his  deed  ? 

Lord  Chancellor  Eldon. — I  cannot  yet  find  this  case  among  Lord  Hard- 
wicke's  notes.  I  feel  it  to  be  my  duty  to  understand  the  principle  of  the  case 
before  I  confirm  it,  or  to  decide  against  it  upon  a  principle  stated  from  this 
place  so  clear,  that  there  can  be  no  doubt  upon  it.  I  was  surprised  at  the 
case  when  it  was  stated.  Suppose  there  was  no  freehold  estate,  but  there  was 
a  copyhold  estate,  which  the  owner  had  subjected  to  a  mortgage,  and  died,  it 
is  clear  the  mortgagee,  having  two  funds,  might,  if  he  pleased,  resort  to  the  copy- 
hold estate.  But  would  this  Court  compel  him  to  resort  to  it  ?  If  so,  the 
Court  marshals  by  the  necessary  consequence  of  its  act.  If  the  Court  would 
not  compel  him,  is  it  not  clear  that  it  is  purely  matter  of  his  will  whether  the 
simple  contract  creditors  shall  be  paid  or  not  ?  That,  at  least,  contradicts  all 
the  authorities,  that  if  a  party  has  two  funds,  (not  applying  now  to  assets  par- 
ticularly,) a  person  having  an  interest  in  one  only  has  a  right  in  equity  to 
compel  the  former  to  resort  to  the  other,  if  that  is  necessary  for  the  satisfac- 
tion of  both.  I  never  understood,  that  if  A.  has  two  mortgages,  and  B.  has 
one,  the  right  of  B.  to  throw  A.  upon  the  security  which  B.  cannot  touch, 
depends  upon  the  circumstance  whether  it  is  a  freehold  or  a  copyhold 
[  "-']  *iuortgage.  It  does  not  depend  upon  assets  only  :  a  species  of  marshal- 
ling being  applied  in  other  cases,  though  technically  we  do  not  apply  that 
term  except  to  assets.  So,  where  in  bankruptcy  the  Crown,  by  extent,  laying 
hold  of  all  the  property,  even  against  creditors,  the  Crown  has  been  confined 
to  such  property  as  would  leave  the  securities  of  incumbrancers  effectual.^  So, 
in  the  case  of  the  surety,^  it  is  not  by  force  of  the  contract ;  but  that  equity, 
upon  which  it  is  considered  against  conscience  that  the  holder  of  the  securi- 
ties should  use  them  to  the  prejudice  of  the  surety;  and  therefore  there  is  no- 
thing hard  in  the  act  of  the  Court  placing  the  surety  exactly  in  the  situation 
of  the  creditor.  So,  a  surety  may  have  the  benefit  of  a  mortgage  of  a  copy- 
hold estate  exactly  as  of  freehold.  It  is  very  difficult  to  reconcile  this  with 
the  principle  of  all  those  cases  between  living  persons. 

So,  also,  in  a  case  which  this  Court  calls  a  just  distribution  of  the  effects  of 
a  deceased  person,  a  simple  contract  creditor  has  no  manner  of  hold  upon  the 
freehold  estate.  How,  then,  is  he  allowed  in  this  court  eff"ectually  to  apply  it 
for  his  satisfaction  ?     Not  upon  the  ground  that  it  is  assets,  either  by  will  or 

1  And  see  Sagitary  v.  Hyde,  1  Vern.  455. 

*  Sec  Dering  v.  Earl  of  Winchelsea,  ante,  vol.  1,  p.  T8,  and  note. 


ALDRICH     V.     COOPER.  203 


by  contract  inter  vivos  ;  but  upon  the  ground,  that  the  specialty  or  mortgage 
creditor,  having  two  funds,  shall  not,  by  his  will,  resort  tb  that,  by  going  to 
which  he  will  disappoint  as  just  a  creditor,  who  cannot  resort  to  any  other. 
The  principle,  in  some  degree,  is,  that  it  shall  not  depend  npon  the  will  of  one 
creditor  to  disappoint  another.  Then,  what  is  the  distinction  as  to  the  copy- 
hold estate  ?  The  question  is,  whether  the  debtor  has  not  subjected  the  copy- 
hold estate  to  the  extent  of  the  mortgage  imposed  upon  it ;  whether  he  has 
not  decided  that  his  property,  to  that  extent,  shall  be  liable  to  some  debt  ? 
And  the  Court  will  extract  this  farther  principle,  that  a  creditor  who  can 
make  it  liable  to  that  extent,  shall  not,  hy  his  will,  defeat  another;  the  former 
having  two  funds,  the  latter  only  one.  The  principle  is  farther  demonstrated 
by  the  cases  of  contracts  by  specialty  that  do  not  aifect  the  real  estate ;  as  a 
bond,  not  mentioning  heirs  :  there,  according  to  Lord  Hardwicke, 
*there  is  no  marshalling,  as  there  are  not  two  funds,  and  therefore  no  L 
one  is  disappointed  by  the  option  of  another ;  the  act  of  the  creditor's  will 
necessarily  originating  out  of  the  security  he  has.  Robinson  v.  Tonge,  to  a 
certain  degree,  relieves  simple  contract  creditors.  The  estate  is  charged  ex- 
pressly with  the  payment  of  that  debt ;  and  therefore,  if  the  freehold  and  copy- 
hold estates  go  to  different  heirs,  that  charge  is  the  foundation  for  this  Court's 
applying  the  principle  of  contribution ;  not  because  it  is  assets,  but  because  it 
is  charged,  not  being  assets.  The  effect  of  that,  as  to  simple  contract  credi- 
tors, is,  that  resort  may  be  given  to  them  upon  the  unexhausted  part  of  the 
freehold  estate,  as  the  specialty  creditors  are,  to  a  certain  degree,  thrown 
upon  the  copyhold. 

^LoRD  Chancellor  Eldon. — I  have  looked  into  every  book,  and  can  find 
nothing  material  upon  this  point,  either  in  print  or  manuscript.  No  book 
notices  that  there  was  any  such  point  in  Robinson  v.  Tonge ;  but  it  is  clear, 
from  the  Registrar's  book,  by  the  arrangement  of  the  decree,  that  the  point 
must  have  occurred.  The  specialty  creditors  insisted  that  they  had  a  right 
to  have  the  whole  copyhold  estate  applied  to  the  mortgage,  in  order  to  leave 
the  freehold  estate  as  assets  for  debts.  Upon  that  case,  if  that  decision  had 
not  been  made,  I  should  have  thought  they  would  have  had  that  right.  I 
cannot  conceive  the  principle  upon  which  that  decision  stands.  Mr.  Cox  had 
it  from  a  book  of  Lord  Redesdale's,  a  note  book  of  Sir  Thomas  Sewell,  who,  I 
have  no  doubt,  took  the  note  himself,  and  preserved  it  as  a  special  case.  No 
case,  therefore,  can  be  entitled  to  more  respect.  The  difficulty  is  this  : — Sup- 
pose the  personal  estate  to  be  1500?.  and  simple  contract  debts  to  that  value, 
and  a  mortgage  of  that  amount  upon  freehold  and  copyhold  estates ;  the  mort- 
gagee, if  he  pleases,  may  call  for  payment  out  of  the  estate  pledged.  It  is 
clear,  if  no  third  persons  are  concerned,"^  the  Court  would  *arrange  r*g^-| 
between  the  two  estates,  if  they  went  to  different  persons.     In  that 

1  Dec.  10,  1802. 

2  As  to  third  parties  being  concerned,  see  Averall  v.  Wade,  L.  &  G.  t.  Sugd.  252 ! 
Barnes  v.  Racster,  1  Y.  &  G,  0.  C.  401. 


204  MARSHALLING     ASSETS. 


case,  //  no  third  persons  are  concerned,  and  the  estates  were  of  equal  value, 
that  sum  would  be  divided  between  them,  and  the  simple  contract  creditors 
would  receive  the  whole  personal  estate.  If  the  mortgagee  chose  to  exhaust 
the  whole  personal  estate,  the  consequence,  if  that  doctrine  is  right,  is,  that 
the  simple  contract  creditors  would  stand  in  his  place  against  the  freehold 
estate  at  least,  for  the  proportion  of  the  mortgage  that  estate  ought  to  bear. 
Why  ?  That  is  not  the  act  of  the  testator,  nor  of  the  law.  There  is  no  more 
a  lien  for  them  upon  the  freehold  estate  than  upon  the  copyhold.  But  the 
Court  has  said,  and  the  principle  is  repeated  very  distinctly  in  The  Attorney- 
General  V.  Tijndall,^  that  if  a  creditor  has  two  funds,  the  interest  of  the 
debtor  shall  not  be  regarded,  but  the  creditor  having  two  funds,  shall  take  to 
that  which  which,  paying  him,  will  leave  another  fund  for  another  creditor. 
If  that  is  so  as  to  simple  contract  creditors,  having  no  connection  with  the 
freehold  estate,  except  that  principle  of  equity,  why  is  not  the  same  principle 
to  apply  to  copyhold  estate  ?  Copyhold  estate  is  not  chargeable-  with  debts  ; 
neither  is  freehold  estate  chargeable  with  simple  contract  debts  f  but  this  copy- 
hold estate  is  expressly  charged  with  a  debt ;  and  if  freehold  estate  is  applied 
to  simple  contract  debts,  because  charged  with  another  debt,  why  is  not  copy- 
hold estate  ? 

*LoRD  Chancellor  Eldon. — This  instrument,  as  far  as  it  respects  the 
copyhold  estate,  is  certainly  an  inaccurate  security ;  for  the  mortgagor,  cove- 
nanting to  procure  himself  to  be  admitted  and  to  surrender,  and  in  the 
meantime  to  stand  seised  to  the  use  of  the  mortgagee,  not  being  himself 
admitted,  could  not  with  propriety  be  said  in  the  meantime  to  stand  seised, 
as,  after  admission,  in  a  sense  he  might.  The  effect  of  the  deed  is  an  agree- 
ment in  equity,  pledging  the  copyhold  estate  for  the  payment  of  that  sum 
P^^r-i  together  with  the  freehold  estate;  and  I  state  *it  in  these  terms,  as  I 
^  -^  do  not  understand  it  to  be  an  instrument  of  mortgage  of  the  free- 
hold estate,  with  no  more  than  a  covenant  that,  if  the  freehold  estate  should 
be  deficient,  the  copyhold  should  be  a  security  in  aid ;  but  I  look  upon 
it  as  giving  the  mortgagee  a  legal  estate  in  the  freehold  and  an  equitable  estate 
in  the  copyhold ;  thereby  giving  him  recourse  to  two  funds  for  the  payment 
of  his  debt. 

The  question  is,  whether  for  the  sake  (if  it  is  necessary)  of  discharging  the 
debts,  and  particularly  the  simple  contract  debts  of  the  mortgagor,  the  Court 
will  go  farther  than  it  appears  to  have  done  in  a  case  which  I  found,  I  con- 
fess, very  much  to  my  surprise,  in  Mr.  Cox's  note.  I  never  had  heard  of  it 
before.  I  do  not  find,  cither  in  print  or  manuscript,  that  it  has  found  its  way 
to  the  notice  of  the  public,  except  through  the  channel  from  which  Mr.  Cox 

1  Amb.  614. 

2  The  word  "  charged"  in  the  report  is  evidently  used  by  mistake. 

»  But  see  now  3  &  4  Will.  4,  c.  104,  rendering  freeholds  and  copyholds  liable  to  all 
debts. 

«  April,  2G,  1803. 


ALDRICH     V.     COOPER.  205 

derived  his  information.  There  is  no  other  note  of  it.  Yet  there  is  no  doubt 
of  the  authenticity  of  that  note;  for  Mr.  Cox  has,  in  this,  as  in  all  other  cases, 
(which  makes  his  work  of  so  much  value  in  the  library  of  a  lawyer,)  examined 
the  Registrar's  book,  which  corresponds  with  the  note.  At  the  same  time,  no 
notice  is  taken  of  that  case,  or  any  other  of  that  date,  in  Lord  Hardwicke's 
notes.  In  fact,  however,  the  records  of  the  Court  prove  that  there  was  such 
a  case.  I  understand,  by  the  note,  that  there  being  no  fund  but  the  freehold 
and  copyhold  estates,  and  the  mortgage  creditor  having  both  those  estates  in 
his  mortgage,  it  was  desired  that  equity,  in  order  to  satisfy  the  specialty  cre- 
ditors, would  require  him  to  take  his  satisfaction  out  of  the  copyhold  estate 
alone.  The  principle  stated  by  the  Court,  in  answer,  that  copyhold  estates 
are  not  liable,  either  in  law  or  equity,  to  the  testator's  debts,  farther  than  he 
subjected  them  thereto,  is  undeniably  true.  But  the  question  is,  how  it  is  to  be 
applied,  when  the  testator  has,  by  contract,  subjected  his  copyhold  estate  to 
the  whole  of  the  debt ;  though.at  the  same  time  subjecting  an  estate  of  another 
species  also  to  the  whole  debt.  I  understand  the  opinion  of  the  Court  to  have 
been,  considering  it  a  *due  application  of  the  principle  stated  by  Mr.  y  ^f'n-. 
Cox,  that  none  of  the  rules  subject  any  fund  to  a  claim  to  which  it 
was  not  before  subject;  but  they  only  take  care  that  the  election  of  one 
claimant  shall  not  prejudice  the  claims  of  others;  that  there  were  a  freehold 
and  copyhold  estate  both  liable  to  the  whole  mortgage  by  the  contract  and  act 
of  the  testator  in  his  life ;  that  though  the  specialty  creditors  could  not  be 
wholly  paid,  unless  the  mortgage  was  thrown  upon  the  copyhold  estate,  to  the 
intent  that  the  freehold  might  be  open  to  the  specialty  creditors,  yet  the  copy- 
hold should  only  bear  its  proportion  ;  that  is,  that  a  value  should  be  set  upon 
each  estate ;  and,  if  that  distribution  of  the  two  funds  left  any  specialty  cre- 
ditors unpaid,  they  must  abide  by  the  loss.  It  is  quite  clear  this  case  is  by 
no  means  a  due  application  of  that  principle  stated  by  Mr.  Cox.  Both  the  copy- 
hold and  the  freehold  estates  were  be/ore  suLject  to  the  claim  ;  and  the  converse 
of  that  proposition  seems  in  some  degree  to  follow  from  making  the  election 
of  the  mortgagee  determine  how  far  the  specialty  creditors  shall  or  shall  not 
be  paid. 

I  have  had  an  opportunity  of  communicating  with  Lord  Eedesdale  upon 
this  case,  and  have  his  Lordship's  authority  to  say,  that  he  can  reconcile  it 
with  no  principle  ;  that  it  was  as  great  a  surprise  upon  him  as  it  was  upon  me  ; 
and  he  considers  it  as  a  case  standing  altogether  by  itself,  and  not  reconcilable 
to  the  principles  which  govern  the  Court  in  a  great  variety  of  other  instances. 
I  have  also  the  full  concurrence  of  Lord  Redesdale's  opinion,  that  he  would 
not  determine  according  to  that  authority.  In  the  consideration  of  this  sub- 
ject, the  word  "  assets"  has  been  very  frequently  used.  But  when  you  come 
to  look  at  the  case  of  marshalling,  though  that  term  so  frequently  occurs,  the 
operation  is  upon  the  principle  that  the  party  has  a  douhle  fund.  It  is  said 
copyhold  estate  is  not  assets.  Clearly  it  is  not  assets  for  specialty  debts,  not 
even  for  the  debts  of  the  Crown.     But  is  freehold  estate  assets  for  simple 


206  MARSHALLING     ASSETS. 

contract  debts  ?  It  is  not,  neither  in  law  nor  equity.^  Upon  what  ground, 
then,  docs  the  Court  say,  in  given  cases,  simple  contract  debts  shall  be  paid 
r*p-T  out  of  *the  real  estate?  Not  upon  the  ground  of  assets;  but  upon 
this,  that,  not  every  creditor  has  a  pledge  of  land,  but  a  specialty  cre- 
ditor has  a  double  fund  to  resort  to.  There  may  be  a  mortgage,  for  instance, 
where  the  instrument  in  none  of  its  parts  or  obligations  would  aflfect  the  heir. 
Though  he  has  a  pledge  of  the  land,  it  is  not  as  assets,  or  as  a  specialty  credi- 
tor. But  if  he  has  a  bond  or  covenant  in  the  deed,  he  is  a  specialty  creditor, 
whose  demand  after  the  death  of  the  mortgagor  would  aflFcct  the  heir.  In  that 
case,  then,  the  Court  says,  as  that  specialty  creditor,  by  his  specialty  contract 
can  affect  the  land,  he  has  two  funds  :  the  freehold  and  the  personal  estate ; 
and  he  shall  not  by  his  election  disappoint  the  natural  and  moral  equity  of  the 
creditor  by  simple  contract  to  be  paid  out  of  the  single  fund,  which  his  debt 
affects.  The  simple  contract  creditor,  therefore,  has  no  more  in  law  any  claim 
against  the  freehold  estate  than  the  specialty  creditor  in  Robinson  v.  Tonge 
had  upon  the  copyhold  estate.  But,  in  the  former  case,  the  Court  has  said, 
the  caprice  or  election  of  a  bond  creditor  shall  not  operate  to  the  prejtidice  of 
the  simple  contract  creditor ;  and  how  can  a  due  application  of  that  principle 
be  made,  if  it  is  not  applied  where  the  specialty  creditor  has  a  claim  against 
the  freehold  estate,  but  not  against  copyhold  estate  as  any  creditor  of  any  sort, 
but  both  estates  being  pledged  and  made  a  double  fund  by  the  act  and  deed 
and  contract  of  the  mortgagor  ? 

Suppose  another  case :  two  estates  mortgaged  to  A.,  and  one  of  them  mort- 
gaged to  B.  He  has  no  claim  under  the  deed  upon  the  other  estate.  It  may 
be  so  constructed  that  he  could  not  affect  that  estate  after  the  death  of  the 
mortgagor.  But  it  is  the  ordinary  case  to  say,  a  person  having  two  funds  shall 
not,  by  his  election,  disappoint  the  party  having  only  one  fund ;  and  equity, 
to  satisfy  both,  will  throw  him  who  has  two  funds  upon  that  which  can  be 
affected  by  him  only,  to  the  intent  that  the  only  fund  to  which  the  other  has 
access  may  remain  clear  to  him.  This  has  been  carried  to  a  great  extent  in 
r  *A81  bankruptcy ;  for  a  mortgagee,  whose  interest  in  the  estate  was  *affected 
by  an  extent  of  the  Crown,  has  found  his  way,  even  in  a  question  with 
the  general  creditors,  to  this  relief;  that  he  was  held  entitled  to  stand  in  the 
place  of  the  Crown  as  to  those  securities,  which  he  could  not  affect  per  direc- 
tum, because  the  Crown  affected  those  in  pledge  to  him.^  Another  case  may 
be  put :  that  a  man  died,  having  no  fund  but  a  freehold  and  a  copyhold  estate; 
that  they  were  both  comprehended  in  a  mortgage  to  A.,  and  the  freehold  estate 
only  was  mortgaged  to  B. ;  and  that  B.  was  not  only  a  mortgagee  of  the  free- 
hold estate,  but  also  a  specialty  creditor  by  a  covenant  or  a  bond.  In  that 
case,  as  well  as  in  this,  it  might  be  said  the  mortgagee  of  both  estates  might, 
if  he  thought  proper,  apply  to  the  freehold  estate,  and  exhaust  the  whole  value 
of  it.     The  other  would  then  stand  as  a  naked  specialty  creditor,  the  fund 

*  Both  freehold  and  copyhold  estates  are  now  assets  for  the  payment  of  all  debts. 
See  3  &  4  Will.  4,  c.  104. 

2  And  see  Sagitary  v.  Hyde,  I  Vern.  455. 


ALDRICH     V.     COOPER.  207 

being  taken  out  of  his  reacli ;  and  there  is  no  doubt  that,  being  both  a  specialty 
creditor  and  a  mortgagee  of  the  freehold  estate,  but  not  having  any  claim  as 
mortgagee  upon  the  copyhold  estate,  the  same  arrangement  would  take  place, 
that  he  in  equity  should  throw  the  prior  incumbrancer  upon  the  estate  to  which 
the  other  has  no  resort.^ 

The  cases  with  respect  to  creditors  and  other  classes  of  claimants  go  exactly 
the  same  length.  In  the  cases  of  legatees  against  assets  descended,  a  legatee 
has  not  so  strong  a  claim  to  this  species  of  equity  as  a  creditor.  But  the  mere 
bounty  of  the  testator  enables  the  legatee  to  call  for  this  species  of  marshalling ; 
that,  if  those  creditors,  having  a  right  to  go  to  the  real  estate  descended,  will 
go  to  the  personal  estate,  the  choice  of  the  creditors  shall  not  determine 
whether  the  legatees  shall  be  paid  or  not.  That  in  some  measure  is  upon  the 
doctrine  of  assets ;  but  with  relation  to  the  fact  of  a  double  fund.  Both  are 
in  law  liable  to  the  creditors,  and  therefore,  by  making  the  option  to  go  against 
the  one,  they  shall  not  disappoint  another  person,  who  the  testator  intended 
should  be  satisfied.  That  is  not  so  strong  as  where  it  is  not  bounty,  but  the 
party  has,  by  his  own  act  in  his  life,  made  liable  to  the  whole  of  the  debt  a 
copyhold  estate,  not  in  law  liable,  *and  who,  having  also  a  freehold  estate,  p  ^pq-, 
must  be  understood  to  mean,  that  the  freehold  estate  shall  be  liable 
according  to  law  to  his  specialty  debts. 

The  case  is  exactly  the  same  with  reference  to  the  distinction  taken,  that, 
where  lands  are  specifically  ^Jevised,  the  legatees  shall  not  stand  in  the  place 
of  the  creditors  against  the  devisees,  for  that  is  upon  the  supposition  that  there 
is  in  the  will  as  strong  an  inclination  of  the  testator  in  favor  of  a  specific  de- 
visee as  a  pectiniary  legatee,  and  therefore  there  shall  be  no  marshalling.  But 
if,  though  specifically  devised,  the  land  is  made  subject  to  all  debts,  that  dis- 
tinguishes the  case ;  for  there  is  a  double  fund ;  and  as,  by  that  denotation  of 
intention,  the  creditor  has  a  double  fund, — the  land  devised,  and  the  personal 
estate, — he  shall  not  disappoint  the  legatee.*  The  case  is  also  the  same, 
where,  instead  of  the  case  of  a  mere  specialty  creditor,  the  land  specifically 
devised  is  subject  to  a  mortgage  by  the  testator;  as  in  Lutkins  v.  Leigh  :^  there 
he  shall  not  disappoint  the  legatee.  So  the  case  of  paraphernalia  is  very 
strong  for  this  proposition,  that,  wherever  there  is  a  double  fund,  though  this 
Court  will  not  restrain  the  party,  yet  he  shall  not  so  operate  his  payment  as  to 
disappoint  another  claim,  whether  arising  by  the  law  or  by  the  act  of  the  tes- 
tator. 

The  conclusion  therefore  is,  that  the  case  of  Rohinson  v.  Tonge  is  not  recon- 
cilable with  the  general  classes  of  cases ;  and,  therefore,  if  it  is  necessary  for  the 
payment  of  the  creditors,  that  the  mortgagee  should  be  compelled  to  take  his 
satisfaction  out  of  the  copyhold  estate,  if  he  takes  it  out  of  the  freehold,  those 
who  are  thereby  disappointed  must  stand  in  his  place  as  to  the  copyhold  estate. 


1  See  Gwynne  v.  Edwards,  2  Russ.  289,  n. 

^  See  Patterson  v.  Scott,  1  De.  G.  Mac.  &  G.  531.  ^  Ca.  t.  Talb.  54. 


208  MARSHALLING     ASSETS. 

Aldrich  V.  Cooper  is  generally  cited  as  tlie  leading  case  upon  the  doctrine 
of  marshalling,  which,  although,  in  consequence  of  legislative  enactments,  not 
so  frequently  called  into  exercise  as  in  former  years,  is  still  of  considerable 
importance,  and  forms  one  of  the  most  useful  branches  of  equitable  jurisdic- 
^-j^  -,  tion  :  Ilanhy  v.  Roberts,  *Amb.  127  ;  Tomhs  v.  Roch,  2  Coll.  497  ; 
'-  '  -^  Tidd  V.  Lister,  10  Hare,  157;  Paterson  v.  Scott,  1  De  G.  Mac.  &  Gr. 
531.  It  depends  upon  this  principle,  as  laid  down  in  the  principal  case,  that 
a  person  having  two  funds  to  safify  his  demands,  shall  not,  hy  his  election, 
disappoint  a  party  who  has  only  one  fund.  If,  therefore,  a  person,  having  a 
claim  upon  two  funds,  chooses  to  resort  to  the  only  fund  upon  which  another 
has  a  claim,  that  other  person  shall  stand  in  his  place  for  so  much  against  the 
fund,  to  which  otherwise  he  could  not  have  access;  the  object  of  the  Court 
being,  that  every  claimant  shall  be  satisfied,  as  far  as,  by  any  arrangement 
consistent  with  the  nature  of  the  several  claims,  the  property  which  they  seek 
to  affect,  can  be  applied  in  satisfaction  of  such  claims. 

The  doctrine  of  marshalling  is  most  frequently  brought  into  exercise  in 
administering  the  assets  of  a  deceased  person. 

1st.  Between  creditors. — When,  under  the  old  law,  creditors  by  simple  con- 
tract had  no  claim  upon  real  assets,  unless  charged  with,  or  devised  for,  the 
payment  of  debts,  a  court  of  equity  would  compel  specialty  creditors  who  might 
resort,  in  the  first  instance,  to  the  personal  estate,  in  priority  of  simple  contract 
creditors,  and  to  the  real  assets,  in  exclusion  of  |hem,  to  recover  satisfaction, 
in  the  first  place,  out  of  the  real  assets  as  far  as  they  went :  or  if  the  specialty 
creditors  had  already  exhausted  the  personal  assets  in  payment  of  their  claims, 
the  simple  contract  creditors  would  be  put  to  stand  in  their  place  against  the 
real  assets,  whether  devised  or  descended,  as  far  as  the  specialty  creditors 
might  have  exhausted  the  personal  assets,  (^Sagitary  v.  Hyde,  1  Vern.  455 ; 
Neave  v.  Alderton,  1  Eq.  Ca.  Abr.  144 ;  Wilson  v.  Fielding,  2  Vern.  763  ; 
Galton  V.  Hancock,  2  Atk.  436  ;)  so  would  a  voluntary  specialty  creditor, 
though  liable  to  be  postponed  to  simple  contract  creditors  :  Lomas  v.  Wright, 
2  Russ.  &  My.  769.  And  a  specialty  creditor,  to  whose  debt,  copyholds, 
(previous  to  3  &  4  Will.  4,  c.  104,)  were  not  liable,  might  stand  in  the  place 
of  a  mortgagee  of  the  copyholds :  Gwynne  v.  Edwards,  2  Russ.  289,  n. 

But  simple  contract  creditors  are  not  entitled  to  have  a  larger  fund  for  pay- 
ment of  their  debts  than  they  had  originally.  Thus,  in  Cradock  v.  Piper,  15 
Sim.  301,  where  specialty  creditors  bad  exhausted  their  debtor's  personal  estate, 
a  decree  was  made  for  marshalling  his  assets.  A  considerable  time  elapsed 
before  the  real  estate  could  be  made  available  for  the  purposes  of  the  decree : 
it  was  held,  by  Sir  L.  Shadwell,  V.  C,  that  the  simple  contract  creditors  were 
not  entitled  to  have  the  interest  which  would  have  accrued  on  the  specialty 
P^-,,-,  debts  if  they  had  remained  unsatisfied,  as  well  as  the  amount  of  the 
personal  estate,  raised  out  *of  the  real  estate  and  applied  towards  satis- 
faction of  their  debts. 

Where,  however,  specialty  debts  of  a  deceased  person  had  been  paid  out  of 
his  personal  estate,  and  at  the  time  of  such  payment  the  personal  estate  was 


ALDRICH     V.      COOPER.  209 

sufficient  also  to  pay  liis  simple  contract  debts,  and  the  executor  mhsequently 
committed  a  devastavit,  which  rendered  the  personal  estate  insufficient  to  pay 
simple  contract  creditors,  it  was  held  by  Lord  Chancellor  Brady,  that  they 
were  entitled  to  be  paid  out  of  the  real  estate  of  the  debtor,  to  the  extent  to 
which  the  personal  estate  had  been  applied  in  payment  of  the  specialty  debts. 
Ellardw.  Coojjer,  1  Ir.  Ch.  Rep.  376;  but  see  Keai-nariY.  Fitzsimon,  3  Ridg. 
P.  C.  16. 

Marshalling  will  not,  unless  founded  on  some  equity,  be  enforced  between 
persons,  unless  they  are  creditors  of  the  same  person,  and  have  demands 
against  funds  the  property  of  the  same  person.  *'  It  was  never  said,"  observed 
Lord  EldoD,  "  that,  if  I  have  a  demand  against  A.  and  B.,  a  creditor  of  B. 
shall  compel  me  to  go  against  A.  without  more,  as  if  B.  himself  could  insist 
that  A.  ought  to  pay  in  the  first  instance,  as  in  the  ordinary  case  of  drawer 
and  acceptor,  or  principal  and  surety,  to  the  intent  that  all  the  obligations 
arising  out  of  these  complicated  relations  may  be  satisfied ;  but  if  I  have  a 
demand  against  both,  the  creditors  of  B.  have  no  right  to  compel  me  to  seek 
payment  from  A.,  if  not  founded  on  some  equity  giving  B.  the  right,  for  his 
own  sake,  to  compel  me  to  seek  payment  from  A. :"  Ex  parte  Kendall,  17 
Ves.  520. 

The  recent  statute,  3  &  4  Will.  4,  c.  104,  rendering  freehold  and  copyhold 
estates  liable  to  simple  contract  debts,  has  obviated  the  necessity  of  the  Court 
resorting  to  the  doctrine  of  marshalling,  for  enforcing  their  payment. 

In  Greenwood  v.  Taylor,  1  Russ.  &  My.  185,  a  mortgagee  petitioned  for 
the  sale  of  his  security,  and  to  be  permitted  to  prove  the  full  amount  of  his 
debt  in  a  suit  for  the  administration  of  the  assets  of  the  deceased  morta;asor. 
It  was  held,  by  Sir  J.  Leach,  M-  R.,  that  he  could  prove  only  for  so  much  of 
his  debt  as  might  remain  unpaid  by  the  produce  of  the  mortgaged  estate.  "  The 
rule  in  bankruptcy,"  observed  his  Honor,  "  must  be  applied  here ;  and  the 
mortgagee  cannot  be  permitted  to  prove  for  the  full  amount  of  his  debt,  but 
only  for  so  much  as  the  mortgaged  estate  will  not  extend  to  pay.  This  rule 
is  not  founded,  as  has  been  argued,  upon  the  peculiar  jurisdiction  in  bankruptcy, 
but  rests  upon  the  general  principles  of  a  court  of  equity  in  the  administration 
of  assets.  The  mortgagee  who  has  two  funds,  as  against  the  other  specialty 
creditors  who  have  but  one  fund,  must  resort  first  to  the  mortgage  security, 
and  can  claim  against  *the  common  fund  only  what  the  mortgaged  ,-  ^-^c)-^ 
estate  is  deficient  to  pay."  The  case,  however,  (  Greenwood  v.  Taylor,') 
has  been  disapproved  of  by  Lord  Cottenham,  who,  in  commenting  upon  it, 
remarks  that  "  with  respect  to  the  principle  of  that  case,  it  is  to  be  observed, 
that  a  mortgagee  has  a  double  security ;  he  has  a  right  to  proceed  against 
both,  and  to  make  the  best  he  can  of  both ;  why  he  should  be  deprived  of  this 
right  because  the  debtor  dies,  and  dies  insolvent,  it  is  not  very  easy  to  see." 
Mason  V.  Bogg,  2  My.  &  Cr.  448  ;  and  see  Rome  v.  Young,  3  Y.  &  C.  Exch. 
Ca.  194 ;  4  Y.  &  C.  Exch.  Ca.  204 ;  Tipping  v.  Poicer,  1  Hare,  410 ;  King  v. 
Smith,  2  Hare,  239  ;  Wicke7iden  v.  Rayson,  6  De  G.  Mac.  &  G.  210. 

2d.   Betiveen  legatees. — The  principle  of  marshalling  is  applicable  between 

VOL.  II. — 14 


210  MARSHALLING     ASSETS. 

legatees,  as  where  a  testator  has  charged  one  or  more  legacies  upon  the  real 
estate,  and  other  legacies  are  not  so  charged ;  if  the  personal  estate  prove 
insufficient  to  pay  them  all,  the  legacies  charged  on  the  real  estate  shall  be 
paM  thereout ;  or  if  they  have  been  paid  out  of  the  personal  estate,  the  other 
legacies,  as  to  so  much,  shall  stand  in  their  place  as  a  charge  upon  the  land : 
Hanhy  v.  Roherts,  Amb.  127 ;  Masters  v.  Masters,  1  P.  Wms.  421 ;  BUgh  v. 
Earl  of  Darnlei/,  2  P.  Wms.  G19;  Bonner  v.  Bonner,  13  Ves.  379;  Scales 
V.  Collins,  9  Hare,  656. 

But  where  the  charge  of  a  legacy  upon  real  estate  fails  to  affect  it,  in  con- 
sequence of  an  event  happening  subsequent  to  the  death  of  the  testator,  as  the 
death  of  the  legatee  before  the  time  of  payment,  the  Court  will  not  marshal  assets 
so  as  to  turn  such  legacy  upon  the  personal  estate,  in  which  case  it  would  be  vested 
and  transmissible,  whereas,  as  against  the  real  estate,  it  would  sink  by  the 
death  of  the  legatee  :  Prowse  v.  Abingdon,  1  Atk.  482 ;  and  see  Pearce  v. 
Loman,  3  Ves.  135 ;  there  a  legacy  charged  upon  real  estate,  and  payable  at 
a  future  day,  was  held  by  Lord  Kosslyn  to  sink  as  to  the  real  estate  by  the 
death  of  the  legatee,  before  the  time  of  payment ;  and  that  the  assets  could 
not  be  marshalled.  "  There  is  a  singularity,"  observes  his  Lordship,  '^  in  the 
doctrine,  as  it  now  stands,  that,  as  far  as  it  affects  one  fund  it  is  good ;  as  far 
as  it  affects  the  other,  bad ;  but  it  would  be  still  more  singular  if  it  shall  sink 
in  one  case,  and  not  in  the  other,  but  the  land,  making  good  the  personal 
estate,  shall  be  charged.  The  point  was  of  very  little  moment  in  Pei/nish  v. 
3Iartin,  (3  Atk.  330 ;  1  Wils.  130.)  Therefore  I  would  not  follow  that  case 
to  introduce  a  new  point  with  regard  to  marshalling  assets  against  established 
rules.  The  assets  cannot  be  marshalled.  It  would  be  directly  against  Prowse 
r*7^1  ^'  -^^^^^O^on ;  the  contingency  is  the  *same;  and  I  cannot  charge  the 
real  estate  ■indirectli/."     And  see  Tombs  v.  Roch,  2  Coll.  504. 

The  demand  of  a  simple  contract  creditor,  as  against  the  real  estate  of  a 
testator,  which  would  otherwise  be  barred  by  the  Statute  of  Limitations,  will 
not  be  kept  alive  so  as  to  preclude  the  operation  of  the  statute,  by  the  effect 
of  any  right  which  might  exist,  or  might  have  existed  among  the  parties,  to 
have  the  assets  of  the  testator  marshalled.  Fordham  v.  Wnllis,  10  Hare,  217, 
229,  and  the  remarks  there  upon  Vickers  v.  Oliver,  1  Y.  &  C.  C.  C.  211  j 
Gibbs  V.  Ougier,  12  Ves.  413 ;  and  Biiaby  v.  Sei/mour,  1  J.  &  L.  527. 

3d.  Between  Creditors  and  Legatees. — "  One  rule  of  marshalling  assets," 
observes  Lord  Hardwicke,  "  is  clear,  if  there  are  debts  by  specialty  and  lega- 
cies, and  no  devise  of  the  real  estate,  but  it  descends  ;  if  the  creditors  exhaust 
the  personal  estate,  the  legatees  may  stand  in  their  place,  and  come  upon  the 
real  estate;  this  is  against  the  heir-at-laiv."  Ilanby  v.  Roberts,  Amb.  128; 
S.  C,  Dick.  105.  "  For  although,"  as  observed  by  Lord  Eldon,  in  the  prin- 
cipal case,  "  in  the  cases  of  legatees  against  assets  descended,  a  legatee  has 
not  so  strong  a  claim  to  this  species  of  equity  as  a  creditor,  but  the  mere  bonnfi/ 
of  the  testator  enables  the  legatee  to  call  for  this  species  of  marshalling;  that, 
if  those  creditors,  having  a  right  to  go  to  the  real  estate  descended,  will  go  to 
the  personal  estate,  the  choice  of  the  creditors  shall  not  determine  whether  the 


ALDRICH     V.     COOPER.  211 

legatees  shall  be  paid  or  not."  And  see  (Julpepijcr  ^ .  Ashton,  2  Ch.  Ca.  117; 
Tqiimuj  V.  Tlp2)ing,  1  P.  Wms.  730 ;  Lucy  v.  Gardener,  Bunb.  137  ;  Lut- 
kins  V.  Leigh,  Ca.  t.  Talb.  51 ;  Boioaman  v.  Reeve,  Prec.  Ch.  577. 

And  it  is  as  clear,  "  that  if  one  devises  his  real  estate,  and  gives  general 
pecuniary  legacies  not  charged  on  that  real  estate,  and  dies,  leaving  specialty 
debts,  and  the  specialty  creditors  exhaust  the  personal  estate,  the  legatees  shall 
not  stand  in  their  place  and  come  on  the  realty,  because  it  was  the  intention  of 
the  testator  that  the  devisee  should  have  the  real  estate,  as  well  as  the  legatees 
he  paid:  Hanhy  v.  Roberts,  Amb.  128;  and  see  Clifton  v.  Burt,  1  P.  Wms. 
678 ;  Scott  V.  Scott,  Amb.  383  ;  1  Eden,  458 ;  3Iirehouse  v.  Scaife,  2  My.  & 
Cr.  695  ;  Keeling  v.  Brown,  5  Ves.  359  ;  nor  will  a  specific  legatee  be  allowed 
to  stand  in  the  place  of  specialty  creditors  as  against  real  estate  devised,  (see 
Haslewood  v.  Pope,  3  P.  Wms.  321,  5th  Kesolution ;)  although,  since  3  &  4 
Will.  4,  c.  106,  the  devisee  be  the  heir;  Strickland  v.  Strickland,  10  Sim. 
374. 

However,  it  is  now  settled  that  a  devisee  and  a  specific  legatee  shall  contri- 
bute pro  rata  to  satisfy  the  specialty  debts  of  the  testator  which  his  general 
personal  estate  is  insufEcient  to  pay.  See  Long\.  Short,  *1  P.  Wms.  r^^.-, 
403;  Young  v.  Hassard,  1  J.  &  L.  466;  Gervis  v.  Gervis,  14  Sim. 
654.  In  Tombs  v.  Roch,  2  Coll.  490,  this  subject  is  most  elaborately  dis- 
cussed by  the  Vice-Chancellor  Knight  Bruce,  who  comes  to  this  conclusion 
upon  the  principle,  ''  that  every  will  ought  to  be  read  as  in  effect  embodying 
a  declaration  by  the  testator,  that  the  payment  of  his  debts  shall  be  as  far  as 
possible  so  arranged  as  not  to  disappoint  any  of  the  gifts  made  by  it,  unless 
the  instrument  discloses  a  different  intention." 

It  seems  that  even  previously  to  the  Wills  Act,  (1  Yict.  c.  26,)  a  legatee 
may  have  been  entitled  to  stand  in  the  place  of  a  creditor  who  had  exhausted 
the  personal  assets  as  against  a  residuary  devisee,  although,  as  we  have  seen, 
he  could  not  do  so  as  against  a  specific  devisee,  {Hamly  v.  Fisher,  Dick.  105 ; 
S.  C,  nom.  Hanby  v.  Roberts,  Amb.  129;  Sp)ong  v.  Spong,  3  Bligh,  N.  S. 
84,  106,  overruling  the  decision  of  Alexander,  C.  B.,  reported  1  Y.  &  J.  300; 
and  see  the  observations  of  Lord  St.  Leonards  on  those  cases,  Sugd.  Prop. 
421.)  The  objections,  however,  that  may  well  be  raised  against  marshalling 
in  such  a  case  is,  that  previous  to  the  Wills  Act,  every  residuary  devise  was 
in  reality  specific,  as  it  only  comprehended  property  of  which  the  testator  was 
seised  at  the  time  of  making  his  will,  (see  Spong  v.  Sp>ong,  1  Y.  &  J.  300, 
811 ;  Mirehouse  v.  Scaife,  2  My.  &  Cr.  695  ;)  but  the  Act,  by  allowing  the 
will  to  pass  after  acquired  property,  has  now  brought  real  estate,  for  the  pur- 
poses of  this  question,  into  exactly  the  same  position  as  personal  estate ;  and 
a  residuary  devise  may  be  as  destitute  of  anything  precise  or  defined  as  a  resi- 
duary bequest.  Per  Sir  W.  Page  Wood,  V.  C,  in  Coggswell  v.  Armstrong, 
2  K.  &  J.  227,  231 ;  Dyer  v.  Bessonnett,  4  Ir.  Ch.  Rep.  382 ;  [see  Shreeve  v. 
Shreeve,  2  Stockton's  Ch.  385,  390.] 

Although  as  we  have  before  observed,  a  legatee  is  not  entitled  to  stand  in 
the  place  of  a  specialty  creditor,  as  against  real  assets  devised,  nevertheless, 


0 


212  MARSHALLING     ASSETS. 


where  a  mortgagee  of  a  devised,  as  well  as  of  a  descended  estate,  has  exhausted 
the  personal  assets  by  resorting  to  them  in  the  first  instance,  a  legatee  may 
stand  in  his  place,  and  be  satisfied  out  of  the  mortgaged  premises,  to  the  extent 
of  the  personalty  applied  in  their  exoneration  ;  for  the  application  of  the  per- 
sonal assets  in  exoneration  of  the  real  estate  mortgaged,  does  not  take  place  so 
as  to  defeat  any  legacy.     See  Forrester  v.  Lord  Leigh,  Amb.  171 ;  Lutkins  v. 
Leigh,  Ca.  t.  Talb.  53  ;  Lucy  v.  Gardener,  Bunb.  137 ;  Howell  v.  Price,  1  P. 
Wms.  294  ;  Oneal  v.  Mead,  1  P.  Wms.  693  ;  Davies  v.  Gardiner,  2  P.  Wms. 
190 ;  Rider  v.  Wager,  2  P.  Wms.  335  ;  ante,  vol.  1,  p.  539  ;  Middleton  v.  Mid- 
dleton,  15  Beav.  450 ;  and  see  Wijthe  v.  Henniker,  2  My.  &  K.  635,  644 ;  where 
Forrester  v.  Lord  Leigh  was  followed  by  Sir  John  Leach,  although  the  principle 
*upon  which  it  was  decided  was  justly  questioned.     The  same  view  was 
l'^         taken  by  Sir  James  Wigram,  V.  C,  who  considered  that  the  rule  laid 
down  in  that  case  ought  not  to  be  extended.     See  Johnson  v.  Child,  4  Hare, 
87,  there  the  testator  by  his  will  bequeathed  an  annuity  to  his  wife  for  her  life, 
and  made  it  a  primary  charge,  in  preference  to  all  other  legacies,  on  a  lease- 
hold estate,  which  was,  together  with  certain  policies  of  insurance  on  the  life 
of  the  testator,  subject  to  two  mortgages;  and  he  directed  that,  if  the  rents 
and  profits  of  such  leasehold  estate  should  be  insufficient  to  pay  the  wife's 
annuity,  then  the  same  should  be  paid  out  of  his  other  personal  estate.     The 
mort"-ao-es  were  paid  oif  by  the  executors  out  of  the  produce  of  the  policies  and 
the  general  personal  estate;  it  was  held,  by  Sir  J.  Wigram,  V.  C,  that  the 
wife's  annuity,  so  far  as  it  fell  upon  the  personal  estate,  other  than  the  lease- 
hold estate  specifically  charged,  was  not  entitled  to  priority  over  the  other 
legacies ;  that  the  mortgage  debts,  to  which  the  leasehold  estate  specifically 
charged  with  the  annuity  was  subject,  should  be  apportioned  rateably  upon 
the  leasehold  estate  and  the  policies  of  insurance,  according  to  their  respective 
value  and  amount;  and  that  the  legatees  (other  than  the  wife)  were  entitled 
to  have  the  assets  marshalled,  and  to  stand  in  the  place  of  the  mortgagees  of 
the  leasehold  estate,  to  the  extent  of  that  part  of  the  mortgage  debts  which 
should  be  apportioned  thereupon.     "  It  is  not  very  easy,"  observed  his  Honor, 
'<to  understand  the  principle  upon  which  the  Court  has  proceeded  in  some  of 
the  cases  referred  to.     The  rule  of  law  is  clear,  that  a  testator,  by  devising 
lands  expressly  '  subject  to  a  mortgage,'  does  not  thereby  declare  any  intention 
that  the  devisee  shall  take  cum  onere  as  against  the  testator's  personal  estate. 
It  is  equally  well  settled,  that  the  amount  of  a  testator's  general  personal  estate 
is  not  a  circumstance  from  which  any  inference  can  be  legitimately  drawn  as 
to  the  construction  of  his  will.     Yet,  if  the  amount  of  the  testator's  personal 
estate  be  insufficient  for  the  payment  of  his  debts  and  legacies,  the  Court  dis- 
covers an  intention  on  the  part  of  the  testator,  that  the  devisee  of  his  real 
estate  subject  to  a  mortgage,'should  take  it  cum  onere.     If  the  Court,  in  that 
state  of  circumstances,  had  decided  upon  apportioning  the  deficiency  between 
the  pecuniary  legatees  and  the  devisee  of  the  land,  a  reason  might  have  been 
found  for  the  determination,  in  the  consideration  that  the  Court  was  dividing 
a  burthen  which  the  caprice  of  the  creditor  might  otherwise  have  thrown 


k 


ALDRICH     V.      COOPER.  213 

wholly  upon  either.  But  that  is  not  the  determination  of  the  Court.  The 
Court  is  active  in  throwing  the  burthen  wholly  upon  the  devisee  of  the  laud, 
upon  the  party  apparently,  and  upon  the  ordinary  principles  of  the  p  ^^^-. 
*Court,  entitled  to  be  exonerated ;  and  it  is  remarkable,  that  in  For- 
Tester  v.  Lord  Leigh,  (Amb.  171,)  the  possibility  of  this  very  circumstance  is 
stated  as  the  reason  why  the  Court  will  not,  in  favor  of  a  pecuniary  legatee,  mar- 
shal the  assets,  by  compelling  a  bound  creditor  to  preceed  against'devised  estates. 

*'  I  am,  however,  bound  by  authority,  and  upon  the  authorities  I  think  the 
specific  legatee  of  the  leasehold  must  take  the  legacy  cum  onere,  so  far  as  the 
pecuniary  legatees  may  be  entitled,  under  the  rule  referred  to,  to  have  their 
legacies  protected. 

''  The  question  then  remains,  what  is  the  onus  with  which  he  must  be  charged  ? 
If  the  policies,  as  well  as  the  leaseholds,  had  been  specifically  given,  there  ' 
must  have  been  an  apportionment  of  the  mortgage  debts  between  the  leaseholds 
and  policies ;  and  by  reasoning  analogous  to  that  by  which  I  suppose  the  Court 
to  be  governed  in  holding  the  pecuniary  legatees  entitled  to  come  upon  the 
property  charged  with  the  debts  in  the  place  of  the  mortgagee,  I  think  the 
apportionment  must  still  take  place.  The  Court  compels  the  creditor  to  take 
payment  of  his  debt  out  of  his  security,  or  places  the  legatees  in  the  same  situ- 
ation as  if  he  had  done  so,  not  because  the  security  is  specifically  bequeathed, 
but  in  spite  of  that  circumstance.  A  rule  which,  in  a  specific  case,  marshals 
the  assets  in  favor  of  pecuniary  legatees  at  the  expense  of  specific  legatees,  is 
not  to  be  extended  beyond  the  letter  of  authority,  which  only  confines  the  cre- 
ditor to  his  entire  security." 

But  although  a  pecuniary  legatee  may  stand  in  the  place  of  a  vendor,  who, 
having  a  lien  upon  land  descended  for  unpaid  purchase-money,  has  resorted  to 
the  personalty  in  the  first  instance,  (see  Sjjoule  v.  Prior,  8  Sim.  189,)  that 
will  not  be  the  case  where  the  land  has  been  devised  :  Wythe  v.  Henniker,  2 
My.  &  K.  635.     As  to  marshalling  for  vendor's  lien,  see  ante,  vol.  1,  p.  235. 

So,  if  land  be  devised  for,  or  made  subject  to,  the  payment  of  debisj^sets 
will  be  marshalled  in  favor  of  legatees,  or  annuitants,  who  will  stand  in  the 
place  of  the  creditors  who  may  have  been  satisfied  out  of  the  personal  assets  : 
Foster  V.  Coo7c,  3  Bro.  C.  C.  347  ;  Bradford  y.  Foley,  3  Bro.  C.  C.  351,  n.; 
Webster  v.  Ahop,  3  Bro.  C.  C.  352,  n.;  Arnold  v.  Chapman,  1  Yes.  110; 
Norman  v.  Morrell,  4  Ves.  769  ;  Paterson  v.  Scott,  1  Be  G.  Mac.  &  G.  531  ; 
Surtees  v.  Parkin,  19  Beav.  406 ;  Rickard  v.  Barrett,  3  K.  &  J.  289. 

As  simple  contract  creditors  have  now,  under  3  &  4  Will.  4,  c.  104,  a 
right  to  demand  payment  of  their  debts  out  of  the  real  estate  of  the 
deceased  debtor,  and  have  therefore  a  double  fund  out  of  which  they  may 
receive  satisfaction,  it  seems  on  principle  to  follow,  that  if  they  exhaust  the 
personal  assets,  the  legatees  may  stand  *in  their  place  as  to  the  real  p  ^-„-, 
estate  descended.  This  has,  indeed,  been  questioned  by  a  late  learned  ^  '  -" 
author,  who  observes,  that  "  the  statute  merely  declares  the  land  assets  to  be 
administered  in  equity,  and  does  not  therefore  give  the  creditors  an  election 
between  the  funds,  but  compels  them  to  exhaust  the  personalty  before  they 


214  MARSHALLING     ASSETS. 

can  have  recourse  to  the  land :"  Adams,  276.  However,  where,  in  a  case  be- 
fore the  Vice-Chancellor  Knight  Bruce,  it  was  argued  that  the  stats.  3  &  4 
AVill.  &  M.  c.  14,  and  3  &  4  Will.  4,  c.  104,  were  intended  for  the  relief  of 
creditors,  and  not  of  legatees,  his  Honor  was  clearly  in  favor  of  marshalling 
for  the  legatees  in  such  a  case.  "  The  equity  of  marshalling,"  he  observes, 
"arises  from  a  creditor's  power  to  resort,  not  from  the  mode  in  which  he 
acquired  the  power  of  resorting,  to  each  or  either  of  two  funds  belonging  to 
the  debtor,  whose  rights,  subject  to  the  debt,  have  become  divided;  and 
though  I  do  not  forget  the  passages  found  in  the  reports  of  Gallon  v.  Hancoclc, 
(2  Atk.  424,)  and  Forrester  v.  Lord  Leigh,  (Amb.  171,)  it  seems  to  me  im- 
possible, consistently  with  the  principles  of  decisions  of  the  highest  authority, 
or  consistently  with  any  legal  principle,  to  take  the  view  of  the  effect  and  con- 
sequences of  a  liability  to  creditors,  created  merely  by  statute,  that  the  devisees 
take  in  this  case.  Certainly,  the  liability,  in  general,  of  personal  estate  in 
the  first  instance  to  the  debts  of  a  deceased  debtor,  the  intent  of  the  Statute 
of  Fraudulent  Devises,  and  the  intent  of  the  statute  of  1833,  do  not,  in  my 
judgment,  establish  this  proposition.  I  have  dwelt  the  more  upon  this  argument 
grouded  on  the  nature  and  effect  of  statutory  liability  to  debts,  because,  if  it  is 
well  founded,  it  seems  in  substance  not  to  stop  short  of  asserting  that,  inasmuch 
as  it  is  by  statute  that  copyholds  are  assets  for  creditors,  and  freeholds  for 
simple  contract  creditors,  therefore  there  cannot  be  marshalling  for  legatees 
against  descended  copyholds,  or  in  respect  of  simple  contract  debts  against 
descended  freeholds ;  it  will  surprise  me  exceedingly  to  hear  of  such  a  doctrine 
having  met,  or  meeting,  with  support  or  acceptance  :"  Tombs  v.  Roch,  2  Coll. 
499.  It  may  here  be  mentioned  that  the  Court  will  marshal  assets,  although 
the  right  to  marshal  may  not  be  distinctly  raised  by  the  pleadings,  Gihhs  v. 
Ovgier,  (12  Ves.  413.) 

Paraphernalia.'] — Although,  with  the  exception  of  necessary  wearing  appa- 
rel, (2  Ves.  7,)  a  widow's  paraphernalia  are  liable  to  her  deceased  husband's 
debts,  she  will  be  preferred  to  a  general  legatee,  and  be  entitled,  therefore,  to 
marshal  assets  in  all  those  cases  in  which  a  general  legatee  would  be  entitled 
to  do  so ;  for  instance,  as  against  real  assets  descended,  (  Tipping  v.  Tij^ping, 
P  ^-g-j  1  P.  Wms.  730 ;  Prohert  v.  Clifford,  1  Atk.  440 ;  Amb.  G  ;  2  *P.  Wms. 
"-  544,  note  by  Cox;)  or  real  assets  devised,  if  subjected  by  will  to  the 

payment  of  debts,  (^Incledon  v.  Northcote,  3  Atk.  438;  Boyntonv.Parhhurst, 
1  I3ro.  C.  C.  576 ;  1  Cox,  106 ;)  and  if  a  devised  estate  be  subject  to  a  mort- 
gage or  other  specific  incumbrance,  she  will  be  entitled  to  marshal  the  assets 
as  against  the  devisee,  by  throwing  the  charge  upon  the  estate,  as  the  legatee 
would  have  that  right,  (  Oneal  v.  Mead,  1  P.  Wms.  693 ;  Lutkins  v.  Leigh, 
Ca.  t.  Talb,  53 ;)  but  not,  it  seems,  if  the  estate  devised  be  neither  subjected 
by  will  to  payment  of  debts,  nor  subject  to  a  mortgage  or  specific  incumbrance  : 
RidoutY.  Plymouth,  2  Atk.  104;  Prohert  v.  Clifford,  2  P.  Wms.  544,  n.; 
Forrester  v.  Jjeigh,  Amb.  171.  But  the  same  claims  on  the  part  of  the  widow 
would,  it  appears,  prevail  against  specific  legatees ;  Graham  v.  Londonderry, 


ALDRICH     V.      COOPER.  215 

3  Atk.  395 ;  1  P.  Wms.  731 ;  2  Atk.  78  ;  3  Atk.  369 ;  sed  vide  contra, 
Burton  V.  Pierpont,  2  P.  Wms.  79. 

Assets  not  marshalled  for  a  Chariti/.'] — An  exception  occurs  to  the  equita- 
ble doctrine  of  marshalling,  with  respect  to  charities  :  for  it  may  be  stated,  as 
a  general  rule,  that  assets  are  never  marshalled  in  favor  of  legacies  given  to 
charities,  upon  the  ground,  as  stated  by  Lord  Hardwicke,  in  Mogg  v.  Hodges, 

2  Ves.  53,  that  a  court  of  equity  is  not  warranted  in  setting  up  a  I'ule  of 
equity  contrary  to  the  common  rules  of  the  Court,  merely  to  support  a  bequest 
which  is  contrary  to  law.  This,  if  a  testator  gave  his  real  estate  and 
personal  estate,  consisting  of  personalty  savoring  of  realty,  as  leaseholds 
and  mortgage  securities,  and  also  pure  personalty,  to  trustees,  upon  trust 
to  sell,  and  pay  his  debts  and  legacies,  and  bequeathed  the  residue  to 
a  charity,  equity  will  not  marshal  the  assets  by  throwing  the  debts  and 
ordinary  legacies  upon  the  proceeds  of  the  real  estate,  and  the  personalty 
savoring  of  the  realty,  in  order  to  leave  the  pure  personalty  for  the  charity : 
Mogg  V.  Hodges,  2  Ves.  52  ;  Attorney- General  v.  Tyndall,  2  Eden,  208  3  S.  C. 
Amb.  614;  Foster  \.Blagden,  Amb.  704;  Middleton  v.  Spicer,  1  Bro.  C  C. 
201;  Attorney- Gener al  \.  Earl  of  Winchelsea,  3  Bro.  C.  C.  373;  MakeJiam 
V.  Hooper,  4  Bro.  C.  C.  153  ;  Croshie  v.  Mayor  of  Liverpool,  1  Russ.  &  My. 
761,  n. ;  Fowdin  v.  Gowdey,  3  My.  &  K.  397  ;  Johnson  v.  Woods,  2  Beav, 
409. 

There  has,  however,  been  a  question,  whether  there  could  not  be  a  mar- 
shalling of  assets  where  a  particular  legacy  was  given  to  a  charity ;  and  Lord 
Hardwicke,  in  several  cases  was  of  opinion  that  it  ought  to  be  done  :  Attorney- 
General  V.  Lord  Weymouth,  Amb.  25;  Attorney- General  v.  Graves,  lb.  155  ; 
Attorney- Generals.  Tomptkins,  lb.  216;)  but  it  has  now  been  decided  beyond  all 
doubt,  that  if  a  simple  pecuniary  legacy  is  given  out  of  two  sorts  of  personalty, 
*there  must  be  an  abatement  in  the  proportion  of  the  mixed  to  the  pure  r^^q  -1 
personalty,  {Ridges  v.  Morrison,  1  Cox,  180 ;  Walker  v.  Childs,  Amb. 
524;  Attorney- General  v.  Tyndal,  lb.  614;  S.  C.  2  Eden,  207;  Foster  \. 
Blagden,  Amb.  704 ;  Makeham  v.  Hooper,  4  Bro.  C.  C.  153  ;  Hohson  v.  Black- 
hum,  1  Kee.  273 ;  see  also,  Williams  v.  Kershaw,  1  Kee.  274,  n. ;  Philan- 
thropic Society  v.  Kemp,  4  Beav,  581 ;)  or,  as  Lord  Cottenham  has  expressed 
himself,  "  The  rule  of  the  Court  adopted  in  all  such  cases  is,  to  appropriate 
the  fund  as  if  no  legal  objection  existed  as  to  applying  any  part  of  it  to  the 
charity  legacies;  then  holding  so  much  of  the  charity  legacies  to  fail  as  would 
in  that  way,  be  to  be  paid  out  of  the  prohibited  fund  :"  Williams  v.  Kershaw, 
1  Kee.  275,  n. ;  see  also  Robinson  v.  Governors  of  London  Hospital,  10 
Hare,  19. 

Although  a  court  of  equity  will  not  marshal  assets  for  charitable  legacies,  a 
testator  may  in  effect  himself  marshal  or  arrange  his  assets,  by  directing  his 
charitable  legacies  to  be  paid  exclusively  out  of  his  pure  personalty,  and  the 
Court  will,  as  it  is  not  illegal,  give  effect  to  his  intention  :  Robinson  v.  Geldard, 

3  Mac.  &  G.  735 ;  Sturge  v.  Dimsdale,  6  Beav.  462.  See,  however,  Tlie 
Philanthropic  Society  v.  Kemp,  4  Beav.  58  L 


216  MARSHALLING     ASSETS. 


Although  the  testator  may  have  directed  his  charitable  legacies  to  be  paid 
out  of  his  pure  personalty  in  priority  of  other  legacies,  if  he  has  given  no 
direction  as  to  the  funds  out  of  which  his  debts  and  funeral  and  testamentary 
expenses  are  to  be  paid,  the  pure  personal  estate  must  contribute  with  the 
other  personal  estate  to  their  payment,  before  it  can  be  applied  in  satisfaction 
of  the  charitable  legacies.  See  Tempest  v.  Tempest,  26  L.  J.  501 ;  3  Jur.  N. 
S.  251,  where  Lord  Cranworth,  C,  overruled  the  decision  of  Sir  W.  Page 
Wood,  V.  C,  reported  2  K.  &  J.  635. 

Marshalling  Securities.'] — The  doctrine  of  marshalling  is  not  confined  to 
the  administration  of  assets ;  but  it  is  applied  to  other  cases,  where  the  par- 
ties are  living.  Thus,  it  has  been  laid  down,  that  "  if  a  person,  who  has  two 
real  estates,  mortgages  both  to  one  person,  and  afterwards  only  one  estate  to  a 
second  mortgagee,  who  had  no  notice  of  the  first,  the  Court,  in  order  to  relieve 
the  second  mortgagee,  has  directed  the  first  to  take  his  satisfaction  out  of  that 
estate  only  which  is  not  in  mortgage  of  the  second  mortgagee,  if  that  is  suffi- 
cient to  satisfy  the  first  mortgage,  in  order  to  make  room  for  the  second  mort- 
gagee, even  though  the  estates  descended  to  two  difi"erent  persons :"  per  Lord 
Hardwicke,  C,  in  Lanoi/  v.  Buke  of  Athol,  3  Atk.  446,  This  seems  to  be  a 
correct  exposition  of  the  law,  with  this  exception,  that  it  seems  to  be  imma- 
r  *QA-i  terial  whether  the  second  mortgagee  has  notice  of  *the  first  mortgage  or 
^  not :  see  also  Baldicin  v.  Belcher,  3  D.  &  War.  176 ;  Hughes  v.  Williams, 

3  Mac.  &  a.  690  ;  In  re  Cornwall,  2  C.  &  L.  131 ;  3  D.  &  War.  173  ;  Tidd  v. 
Lister,  10  Hare,  157  ;  In  re  Fox,  5  Ir.  Ch.  Rep.  541 ;  Gibson  v.  Seagrim, 
20  Beav.  614;  and  see  and  consider  In  re  Jones,  a  Minor,  2  Ir.  Ch.  Rep.  544. 
And  if  one  of  two  estates  in  mortgage  is  subject  to  a  portion,  the  person 
entitled  to  the  portion  may,  if  it  be  necessary,  compel  the  mortgagee  to  resort 
to  the  other  estate,  so  that  the  payment  of  the  portion  as  well  as  the  mortgage 
may  be  worked  out :  Lord  Rancliffe  v.  Parki/ns,  6  Dow,  216. 

The  doctrine  also  has  been  carried  to  a  great  extent  in  bankruptcies  ;  "  for," 
as  observed  by  Lord  Eldon,  in  the  principal  case,  "  a  mortgagee  whose  interest 
in  the  estate  was  aflfeetcd  by  an  extent  of  the  Crown,  has  found  his  way,  even 
in  a  question  with  the  general  creditors,  to  this  relief,  that  he  was  held 
entitled  to  stand  in  the  place  of  the  Crown,  as  to  those  securities  which  he 
could  not  affect  per  directum,  because  the  Crown  affected  those  in  pledge  to 
him ;"  and  see  Sagitary  v.  Hide,  1  Vern.  455. 

But  marshalling  will  not  be  enforced  to  the  prejudice  of  a  third  party. 
Thus,  in  Averally.  Wade,  L.  &  G.  t.  Sudg.  252,  where  a  person,  being  seised 
of  several  estates,  and  indebted  by  judgments,  settled  one  of  the  estates  for 
valuable  consideration,  with  a  covenant  against  incumbrances,  and  subse- 
quently acknowledged  other  judgments,  it  was  contended,  by  the  subsequent 
judgment-creditors,  that,  as  they  only  affected  the  unsettled  estates,  on  the 
principle  in  Aldrich  v.  Cooper,  as  they  had  only  one  fund,  they  had  a  right 
to  compel  the  prior  judgment-creditors,  who  had  two  funds, — the  settled  and 
unsettled  estates, — to  resort  to  tlie  settled  estate ;  or,  at  any  rate,  that  the 
settled  estate  ought  to  contribute  to  the  payment  of  the  prior  judgments 


ALDRICH     V.     COOPER.  217 

Lord  Chancellor  Sugden,  however,  held,  that  the  subsequent  judgment-credi- 
tors had  no  equity  to  compel  the  prior  judgment-creditors  to  resort  to  the 
settled  estate ;  on  the  contrary,  that  the  prior  judgments  should  be  thrown 
altogether  on  the  unsettled  estates,  and  that  the  subsequent  judgment-credi- 
tors had  no  right  to  make  the  settled  estate  contribute;  observing,  after  a  close 
examination  of  Aldrich  v.  Cooper,  that,  upon  the  whole  of  the  case,  you  will 
find  Lord  Eldon,  in  the  application  of  the  principle,  "  carefully  avoids  dealing 
with  the  rights  of  third  persons  intervening."  So,  in  Barnes  v.  Racster,  1 
Y,  &  C.  C.  C.  401,  Racster  being  seised  of  Foxhall  Coppice,  and  a  piece  of 
land  marked  in  a  plan  of  the  estate  No.  32,  mortgaged  in  1792,  Foxhall  to 
Barnes ;  in  1795,  Foxhall  to  Hartwright ;  in  1800,  Foxhall  and  No.  32  to 
Barnes ;  and  in  1801,  Foxhall  and  No.  32  to  Williams;  the  subsequent  in- 
cumbrancers took  with  notice.  It  was  held,  by  Sir  J.  L.  Knight  r^o-i-i 
Bruce,  V.  C,  that  the  Court  ought  not,  as  against  Williams,  to  marshal 
the  securities.  His  Honor  said,  that,  circumstanced  as  the  case  was,  Hart- 
wright and  Williams  stood,  with,  regard  to  the  matter  in  dispute,  on  an  equal 
footing ;  that  Barnes  ought  to  be  paid  out  of  the  respective  proceeds  of  No. 
32  and  Foxhall,  pari  passu  and  rateably,  according  to  their  amounts ;  that  the 
residue  of  the  proceeds  of  Foxhall  ought  to  be  applied  towards  paying  Hart- 
wright, and  that  the  residue  of  the  produce  of  No.  32,  ought  to  be  applied 
towards  paying  Williams :  a  conclusion  as  lie  considered,  entirely  in  accord- 
ance with  the  principles  on  which  Lanoy  v.  Duchess  of  Athol,  Aldrich  v. 
Cooper,  and  Averall  v.  Wade,  were  decided.  See  also  Bugden  v.  Bignold,  2 
Y.  &  C.  C.  C.  377 ;   Gibson  v.  Seagrim,  20  Beav.  619. 

Marshalling  ly  the  Court  of  Admiralty. — The  equitable  doctrine  of  mar- 
shalling is  put  in  force  by  the  Court  of  Admiralty.  Thus,  in  a  case  where 
there  are  several  bonds,  and  one  is  secured  on  the  ship  and  freight,  and  an- 
other upon  the  ship,  freight,  and  cargo,  the  bond-holders  who  have  a  charge 
on  the  cargo,  will  not  be  allowed  to  disappoint  the  other  bond-holders  who 
have  none  thereon,  but  will  be  compelled  to  resort  to  the  security  against  their 
ship  and  freight.  The  Trident,  Simson,  1  W.  Rob.  29,  35  ;  La  Constancia, 
2  W.  Rob.  404,  406. 


3Iarshalling   assets, — The    general  real  estate,  as    not  to   interfere  with 

principle  that  the  election  of  a  party  those  whose  remedy  is  confined  to  the 

who  has  a  right  of  recourse  against  personalty.      Its  application    in    this 

two  funds,  shall  not  be  allowed  to  dis-  form,  has  been  seldom  resorted  to  on 

appoint  another  who  has  a  recourse  to  this  side  of  the  Atlantic,  and  has  now 

but  one,  is  as  well  settled  in  the  juris-  ceased  to  be  employed  in  England, 

prudence  of  this  country,  as  in  that  of  Lands  were  made  liable  in  most  of  the 

England.     It  is  there  generally  called  states  at  an  early  period,  for  the  pay- 

into  play,  in  so  ordering  the  claims  of  ment  of  all  debts,  whether  arising  by 

creditors  entitled  to  payment  out  of  specialty  or  simple  contract;  and  it 


218 


MARSHALLING     ASSETS. 


thus  became  unnecessary  to  marshal 
assets  as  between  creditors,  for  the 
purpose  of  preventing  obligations  not 
under  seal,  from  being  defeated  by 
those  which  were,  or  to  confine  a  mort- 
gagee to  his  remedy  againt  the  realty, 
in  order  to  protect  general  ci'editors 
against  a  loss  of  the  personalty ;  Torres 
Estate,  2  Rawle,  250;  PaschaU  v. 
Halman,  4  Gilman,  285.  There  are, 
however,  several  instances  in  which 
the  courts  of  this  country  have  ap- 
plied this  doctrine,  as  between  speci- 
alty and  simple  contract  creditors,  in 
states  where  this  change  of  the  law 
has  not  occurred  or  where  it  has  not 
been  fully  consumated ;  Tinsly  v. 
Oliver,  5  Munford,  419 ;  Chase  v. 
Lockerman,  11  Gill  &  Johnson,  185; 
Gibson  V.  31'Cormick,  10  Id.  65; 
"The  principle  on  which  a  court  of 
equity  proceeds  in  marshalling  assets 
is,"  said  Marshall,  C.  J.,  in  Alston  v. 
Mumford,  1  Brockenborough,  266, 
"  that  a  creditor  having  his  choice  of 
two  funds,  ought  to  exercise  his  right 
of  election  in  such  a  manner  as  not 
to  injure  other  creditors,  who  can  re- 
sort to  only  one  of  these  funds.  But 
if  contrary  to  equity,  he  should  so  ex- 
ercise his  legal  rights  as  to  exhaust 
the  fund  to  which  alone  other  credi- 
tors can  resort,  then  those  other  credi- 
tors will  be  placed  by  a  court  of  equity 
in  his  situation,  so  far  as  he  has  ap- 
plied their  funds  to  the  satisfaction  of 
his  claim." 

It  was  held  accordingly,  that  where 
the  executor  had  applied  the  person- 
alty, in  fulfilment  of  a  contract  for  the 
purchase  of  land  made  by  the  tc'stator, 
under  which  he  had  entered,  but  had 
not  received  a  conveyance,  the  simple 
contract  creditors  were  entitled  to  pay- 
ment out  of  the  land  as  against  the 


heir,  and  were  also  entitled  to  be  sub- 
stituted to  the  claims  of  specialty 
creditors  generally,  as  against  all  the 
lands  which  they  could  have  talcen  in 
execution.  The  latter  point  was  also 
decided  in  Haydon  v.  Goode,  4  Ilen- 
ing  &  Mun.  460,  and  the  real  assets 
which  had  descended  to  the  heir, 
held  liable  to  simple  contract  credi- 
tors, for  the  amount  which  had  been 
paid  to  bond  creditors  out  of  the  per- 
sonalty. In  like  manner,  an  executor 
who  has  paid  simple  contract  debts 
out  of  his  own  resources,  may  obtain 
reimbursement  by  enforcing  the  lien 
of  specialty  creditors  against  the  land; 
31' Gate  V.  Huffman,  12  Grattan, 
6^.  The  same  principle  was  applied, 
in  another  form,  in  Cralle  v.  Meem, 
8  Id.  496 ;  and  creditors,  by  simple 
contract,  subrogated  to  the  remedy 
upon  a  covenant  of  indemnity  against 
certain  outstanding  obligations,  which 
had  been  discharged  by  the  executors 
out  of  the  personal  assets ;  the  court  say- 
ing that  the  principle  applied  in  every 
instance  where  a  liability  which  might 
have  been  enforced  against  one  fund, 
had  been  satisfied  out  of  another,  to  the 
prejudice  of  other  persons  who  had  no 
legal  recourse  against  the  first  fund. 

As  between  creditors]  of  the  same 
person. — The  general  principle,  that 
a  party  who  has  but  one  remedy,  shall 
not  be  deprived  of  it  by  the  course 
adopted  by  another  who  has  two,  ap- 
plies during  the  lifetime  of  the  debtor, 
as  well  as  in  the  administration  of 
his  estate  after  his  death ;  Jlaulei/  v. 
3fancius,  7  Johnson,  Ch.  174,  184; 
The  N.  Y.  Ferry  Co.  v.  The  N.  J. 
Co.,  1  Hopkins,  460.  Thus  a  cre- 
ditor who  has  a  judgment  on  all  the 
real  estate  of  the  debtor,  will  not  be 
allowed  to  defeat  a  subsequent  mort- 


ALDRICH     V.     COOPER. 


219 


gage  of  part,  unless  the  residue  is  in- 
sufficient for  the  satisfaction  of  the 
judgment;  Hastings'  Case,  10  Watts, 
303 ;  Watson  v.  Bane,  7  Maryland, 
117.  Under  such  circumstances,  the 
court  will  protect  the  mortgagee,  so 
far  as  is  consistent  with  the  rights  of 
the  judgment-creditor.  This  will  be 
done  either  by  limiting  the  execution 
issued  on  the  judgment  to  the  land 
not  mortgaged,  or,  more  generally,  by 
subrogating  the  mortgagee  to  the 
remedy  on  the  judgment ;  Ramsey's 
Appeal,  2  Watts,  228.  And  for  the 
same  reason,  a  prior  mortgagee,  will 
not  be  allowed  arbitrarily  to  defeat  the 
claim  of  a  subsequent  judgment-cre- 
ditor. The  nature  and  limits  of  this 
doctrine  were  admirably  stated  and 
defined  by  Chancellor  Kent,  in  the 
case  of  CJiPesehrough  v.  Millard,  1 
Johnson's  Ch.  409.  In  that  case  a 
mortgagee  held  two  mortgages  on  dif- 
ferent pieces  of  ground  as  security  for 
the  same  bond,  and  cancelled  one  of 
the  mortgages,  after  a  judgment  had 
been  obtained  by  a  third  person  against 
the  mortgagor,  which  only  bound  the 
premises  mortgaged  in  the  other. 
And  it  was  contended,  under  these 
circumstances,  on  behalf  of  a  pur- 
chaser under  the  judgment,  that  as 
the  mortgagee  had  two  funds,  he  was 
bound  to  act  with  regard  to  both,  so 
as  not  to  injure  the  judgment-creditor 
who  had  only  one ;  and  that  as  he  had 
deviated  from  this  course  by  cancell- 
ing the  first  mortgage,  and  thereby 
throwing  the  whole  of  the  debt  on  the 
premises  bound  by  the  judgment,  the 
loss  thus  occasioned  should  fall  on 
him.  The  general  principle  on  which 
this  argument  was  founded  was  fully 
admitted  by  the  Chancellor,  although 
held  inapplicable   to  the  case  before 


him,  for  want  of  evidence  that  the 
existence  of  the  judgment,  was  known 
to  the  morto-ao-ee  at  the  time  of  the 
release.     "  I  admit,"  said  he,  "  as  a 
principle  of  equity,  that  if  a  creditor 
has  a  lien  on  two  difiierent  parcels  of 
land,  and  another  creditor  has  a  lien 
of  a  younger  date  on  one  of  these  par- 
cels only,  and  the  prior  creditor  elects 
to  take  his  whole  demand  out  of  the 
land  on  which  the  junior  creditor  has 
a  lien,  the  latter  will  be  entitled  either 
to   have   the   prior    creditor   thrown 
upon  the  other  fund,  or  to  have  the 
prior  lien  assigned  to  him,  and  to  re- 
ceive all  the  aid  it  can  aflFord  him. 
This  is  a  rule  founded  in  natural  jus-        i 
tice,  and  I  believe  it  is  recognized  in  T    / 
every  cultivated  system  of  jurispru-  I     \ 
deuce.     In  the  English  law,  it  is  an     , 
ordinary  case,  that  if  a  party  has  two     ' 
funds,  he  shall  not,  by  his  election,      "^ 
disappoint  another  who  has  one  fund     / 
only,  but    the    latter   shall    stand  iu     {   ' 
the  place  of  the  former,  or  compel  the 
former  to  resort  to  that  fund  which     , 
can  be  afi'ected  by  him  only ;   Sagi-  j 
tary  v.  Hyde,  1  Vern.  455;  Mills  v. 
Eden,  10  Mod.  488 ;  Attorney-  Gene- 
ral V.  Tyndall,  Amb.   614 ;  Aldrich 
v.  Coo2->er,  8  Ves.  388,  391-395 ;  Trim- 
mer V.  Bayne,  9  Id.  209.     The  party 
liable  to  be  afi'ected  by  this  election, 
is  usually  protected  by  means  of  sub- 
stitution.     Thus,  for  instance,   if  a 
creditor  to  a  bond  exacts  his  whole 
demand  of  one  of  the  sureties,  that 
surety  is  entitled  to  be  substituted  in 
his  place,  and  to  a  cession  of  his  rights 
and  securities  as  if  he  was  a  purchaser, 
either  against  the  principal  debtor  or 
the  co-sureties.     This  doctrine  of  sub- 
stitution, which  is  familiar  to  the  civil 
law,   (Dig.  46,  1,  17  and  36 ;  Volt, 
h.  t.  s.  27,  29,  30;)  and  the  law  of 


220 


MARSHALLING     ASSETS. 


those  couutries  in  which  that  system 
essentially  prevails.    (Pothier's  Traite 
des  Oblig.  n.  275,  280,427,  519,  520, 
522;    Kaini's   Equity,  vol.   1,   122, 
125 ;    Hub.  Prajlec.  Inst.  lib.  3,  tit. 
21,  n.  8,)  is  equally  well  known  in  the 
English  chancery.     In   the  case  Ex 
imrte  Crisp,  1  Atk.  133,  Lord  Hard- 
wicke  said,  that  where  the  surety  paid 
off  a  debt,  he  was  entitled  to  have, 
from  the  creditor,  an  assignment  of 
the  security,  to  enable  him  to  obtain 
satisfaction  for  what  he  has  paid  be- 
yond his  proportion  ;  and  in  Morgan 
V.  Seymour,  1  Ch.  Rep.  64,  the  court 
decreed,  that  the  creditor  should  as- 
sign over  his  bond  to  the  two  sureties, 
to  enable   them  to  help  themselves 
against  the  principal  debtor.     To  ap- 
ply, then,  the  general  principle  to  the 
present  case,  if  the  first  mortgage  had 
not  been  discharged,  and  the  mortga- 
gee had  chosen  to  enforce  the  pay- 
ment of  the   whole  first  instalment, 
from  the  lands  covered  by  the  second 
mortgage,  to  the  loss,  perhaps,  of  the 
lien  of  the  judgment-creditor,  by  the 
consumption  of  the  subject,  that  cre- 
ditor, and  probably  the  purchaser  un- 
der the  judgment,  would  have  been 
entitled,  either  to  have  turned  him 
from  the  path  he  had  taken,  or  to  the 
aid  of  the  first  mortgage,  to  recover  a 
proportional  indemnity  from  the  other 
lands  covered  by  that  mortgage." 

The  principles  thus  asserted  have 
been  sanctioned  by  the  subsequent 
course  of  decision  in  New  York,  where 
it  is  well  settled,  that  a  creditor  will 
not  be  allowed  to  interfere  with  the 
claims  of  other  creditors,  further  than 
is  essentially  necessary  for  his  own  pro- 
tection, and  that  their  interests  will  be 
protected,  either  by  restraining  him 
before    satisfaction,    or    subrogating 


them  in  his  stead  afterwards ;  Haw- 
Jry  V.  Mancius,  7  Johnson,  Ch.  174; 
Evertson  v.  Booth,  19  Johnson,  486 ;   / 
The  N.  Y.  Ferry  Co.  v.  The  N.  J. 
Co.,  1  Hopkins,  460  ;  Besley  v.  Law- 1 
rence,  11  Paige,  511;  Hunty.  Town-  \ 
send,  4  Sandford,  Ch.  570;  Averill    \ 
V.  Loii^cks,  6  Barbour,  S.  C  R.  470. 
The   general    doctrine    advanced   in     I 
these  cases,  is  equally  well  settled  in 
Pennsylvania,    although    the    courts     \ 
limit  the  remedy  to  subrogation,  un- 
less there  has  been  negligence  or  de- 
fault,  (^Ramsey's   Appeal,  2   Watts, 
228;    Easting's   case,  10    Id.   303; 
Bruner's  Appeal,  7  W.  &  S.  269 ;) 
and  is  generally  recognized  through- 
out the  Union ;    Ilannegan  v.  Han- 
nah,  7    Blackford,    353 ;    Briggs  v. 
The  Planter's  Bank,  1  Freeman,  Ch. 
575.   The  principle  of  these  decisions, 
and  of  those  above  cited,  applies  em- 
phatically  where    the    assistance   of 
equity  is  sought  to  subject  a  mixed 
fund,  consisting  of  legal   and  equi- 
table assets,  to  the  payment  of  a  debt, 
when  equality  will  be  enforced  among 
different  classes  of  creditors,  by  ex- 
cluding those  who  have  a  superor  right 
to  the  legal  assets,  from  a  share  of 
those  which  are  equitable,  until  each 
has   obtained   an  equal    proportional 
dividend  on  the  aggregate  amount  due 
to  him  ;  Purdy  v.  Doyle,  1  Paige,  558  ; 
Wilder  V.  Keeler,  3  Id.  168. 

The  right  of  the  creditor  to  marshal 
the  assets  of  the  debtor,  for  the  pur- 
pose of  securing  the  payment  of  the 
debt,  as  established  by  these  decisions, 
is  absolute  as  to  the  debtor  himself, 
and  although  subject  to  the  legal  and 
equitable  rights  of  prior  creditors, 
cannot  be  defeated  by  the  interven- 
tion of  those  of  later  date.  Thus, 
where  two  parcels  of  land  are  subject 


ALDRICH     V.     COOPER. 


221 


to  the  lien  of  a  judgment,  and  one  of 
them  to  a  subsequent  mortgage,  the 
mortgagee  is  entitled  to  require,  as 
against  the  debtor,  that  the  judgment 
shall  not  be  made  the  means  of  defeat- 
ing the  mortgage.  And  although  the 
claims  of  the  judgment-creditor  are 
paramount,  so  far  as  is  necessary  for 
the  satisfaction  of  the  judgment,  yet 
subject  to  this,  he  is  also  bound  by  the 
equity  of  the  mortgagee.  Hence,  it 
necessarily  follows,  that  a  subsequent 
judgment  on  both  lots  must  be  post- 
poned to  the  mortgage,  not  only  as  to 
the  premises  mortgaged,  but  also  as  to 
those  which  are  not,  so  far  as  they  are 
subject  to  the  lieu  of  the  first  judg- 
ment. For,  as  the  mortgagee  is  en- 
titled, as  between  himself  and  the 
debtor,  to  throw  the  antecedent  judg- 
ment on  the  unmortgaged  premises, 
he  must  necessarily  have  the  same 
right  as  against  all  parties  whose 
claims,  under  or  against  the  debtor, 
are  subsequent  to  his  own ;  Easlin</'s 
case,  10  Watts,  303.  It  is  a  neces- 
sary corollary  from  this  decision,  that 
the  right  of  subsequent  creditors  to 
marshal  assets  for  their  own  payment, 
cannot  be  used  to  the  detriment  either 
of  the  legal  or  equitable  rights  of  prior 
creditors ;  and  the  rule  is  the  same  as 
to  prior  purchasers;  Withers  y.  Car- 
ter, 4  G-rattan,  407 ;  Zeigler  v.  Long, 
2  Watts,  205;  Bruner's  Appeal,  7 
W.  &  S.  269;  Averall  v.  Wade, 
2  Lloyd  &  Goold,  252  ;  it  being  well 
settled,  that  as  between  equal  equi- 
ties, and  subrogation  is  necessarily  a 
mere  equity,  preference  will  be  given 
to  that  which  is  first  in  point  of  time; 
Wise  V.  Shepherd,  13  Illinois,  41. 
Which,  therefore,  of  two  creditors  who 
have  obtained  judgments  in  diflferent 
counties,  shall  be  subrogated  to  a  prior 


encumbrance,  which  is  a  lien  in  both, 
will,  as  it  would  seem,  depend  on  the 
period  at  which  the  judgments  were 
entered,  their  equities  being  equal  in 
all  other  particulars,  and  neither  hav- 
ing any  superiority  over  the  other,  ex- 
cept that  which  may  be  derived  from 
priority  in  time;  M'Ginniss  Appeal, 
4  Harris,  445. 

Moreover,  the  equity  of  a  creditor 
to  substitution,  is  necessarily  founded 
upon,  and  limited  to,  the  right  which 
he  has  against  the  debtor,  and  conse- 
quently cannot  be  used  to  the  preju- 
dice of  third  persons,  unless  the  debtor 
has  a  right  or  equity  against  them  ; 
and  hence,  when  the  question  was, 
whether  a  senior  judgment  against  a 
ship-builder,  should  be  thrown  on  a 
vessel,  which  had  been  bought  and 
paid  for,  but  not  delivered  before  the 
judgment  was  rendered,  in  order  to 
leave  other  property  free  for  the  dis- 
charge of  other  judgments,  which  had 
been  obtained  at  a  subsequent  period, 
the  court  refused  the  relief  asked  for,  on 
the  ground  that  the  equity  of  the  pur- 
chaser of  the  vessel  being  superior  to 
that  of  the  vendor,  must  necessarily 
be  superior  to  those  claiming  under 
him,  as  creditors  or  purchasers;  Rey- 
nolds V.  Tooker,  18  Wend.  591.  In 
like  manner,  the  holder  of  a  lien  which 
binds  the  estate  of  a  husband,  cannot 
claim  subrogation  to  a  prior  morto-ao-e 
given  for  the  husband's  debt,  on  the 
land  of  the  wife,  because  the  wife's 
equity  is  not  only  older,  but  also,  as 
being  that  of  a  surety,  higher;  Ayres 
V.  Husted,  15  Conn.  504;  Johns  v. 
Reardon,  11  Maryland,  465.  It 
would,  moreover,  appear  that  the 
rights  of  conflicting  claimants,  will 
be  tested  by  the  state  of  facts,  at  the 
time  when  their  respective  claims  ori- 


222 


MARSHALLING     ASSETS. 


ginated;  TTTse  v.  Shepherd,  13  Illinois, 
41 ;  and,  hence,  when  land  was  mort- 
gaged, with  an  accompanying  bond  and 
warrant  of  attorney,  a  subseqirent  mort- 
gage given  to  another  creditor,  judg- 
ment entered  under  the  warrant,  and 
other  judgments  obtained  by  third 
persons,  the  second  mortgagee  was 
held  not  to  be  entitled  to  subroga- 
tion to  the  judgment  attendant  on  the 
first  mortgage,  to  the  prejudice  of  the 
subsequent  judgment-creditors;  Mil- 
ler V.  Jacols,  3  Watts, 477.  The  court 
said,  that  the  second  mortgagee  could 
not  have  compelled  the  first  to  enter 
the  judgment,  and  consequently  could 
have  no  right  to  it  when  entered ;  a 
reason  which  would  seem  somewhat 
questionable,  because  every  creditor  is, 
in  general,  entitled  to  the  benefit  of 
the  rights  of  prior  creditors,  and  of  all 
the  remedies  which  can  serve  to  make 
their  claims  effectual.  See  ante,  vol. 
1,  pp.  153,  IGl. 

As  between  creditors  of  different 
persons. — Notwithstanding  the  extent 
and  scope  of  this  principle,  when 
the  question  arises  as  between  two 
funds  belonging  to  the  same  debtor, 
nothing  is  better  settled  than  that 
a  creditor  can  have  no  right  of  sub- 
rogation to  a  demand  against  a  third 
person,  merely  because  the  assets  of 
his  own  debtor  have  been  exhaust- 
ed in  satisfying  the  demand,  for  if 
such  were  the  case,  the  payment  of 
a  debt  by  one  of  two  joint  debtors, 
would  give  his  creditors  a  right  to  de- 
mand repayment,  or  contribution,  from 
the  other;  A>/ers  v.  Husted,  15  Conn, 
504 ;  Dorr  v.  Shaic,  4  Johns.  Ch. 
17;  Wise  V.  Shepherd,  13  Illinois, 
41.  To  sustain  such  a  demand,  the 
relation  between  the  debtors  must  be 
such  as  to  render  it  more  equitable, 


that   the    debt    should    be   paid   by 
one,   than   by  the   other;    Ex  parte 
Kendall,  17  Vesey,  520.     And  even 
then,  a  general  creditor  of  the  latter 
can  hardly  be  entitled  to  contribution 
or  indemnity  from  the  estate  of  the 
former,  unless  his  recourse  has  been 
narrowed   to   a   particular   fund,   by 
death  or  insolvency,  because  it  must 
otherwise  be  uncertain,  whether,  if 
the  assets  of  the  debtor  had  not  been 
taken  in  payment  of  one  debt,  they 
would  have  been  applied  to  the  pay- 
ment of  the  other.     But  the  case  of  a 
creditor,  who  has  a  specific  lien,  is 
so  far  difi"erent,  that  if  the  property 
to  which  this  lien  applies  be  taken 
in  payment  of  a  claim,  which  ought 
to  have  been  paid  wholly,  or  in  part, 
by  a  third  person,  the  injury  inflicted 
is  certain,  and  therefore  susceptible 
of  a  remedy.     Accordingly,  it  seems 
to  be  admitted  that,   when  the  real 
estate  of  a  surety,  is  sold  to  satisfy 
a  judgment  against  himself  and  the 
principal,  other  judgment-creditors  of 
the  surety  are  entitled  to  subrogation 
to  the  judgment ;  King  v.  J/'  Vickar, 
3  Sandford,  Ch.  192 ;   Wise  v.  Shcp-     - 
herd,  13  Illinois,  41.     In  like  man- 
ner, payment  of  a  debt  due  by  a  firm 
out  of  the  assets  of  a  deceased  partner, 
under  a  mortgage  given  by  him  in  his 
lifetime,  may  entitle  the  separate  cre- 
ditors to  subrogation  to  the  debt,  and 
consequently  to  come  in  on  the  part- 
nership assets  with    the   other  joint 
creditors ;    Averil  v.  Loucks,  6  Bar-      ^ 
hour,  470,  because  it  is  in  general 
prima  facie  more  equitable  that  joint 
debts  should  be  paid  out  of  the  joint 
assets,  and  the  separate  assets  reserved 
for  those  who  have  dealt  with  the  part- 
ners severally.    When,  however,  sepa- 
rate assets  are  alone  in  question,  equity 


ALDRICH     V.      COOPER. 


223 


will  not  throw  the  joint  creditors  on 
the  estate  of  a  deceased  partner,  in 
order  to  leave  the  assets  of  a  surviving 
partner  free  for  the  discharge  of  lia- 
bilities which  have  been   contracted 
since  the  dissolution  of  the  firm,  un- 
less it  is  shown  that  the  state  of  the 
accounts   between  the    partners  was 
such  as  to  render  it  more  equitable, 
that  the  debts  of  the  firm  should  be 
paid  by  the  deceased  than  by  the  sur- 
vivor; Meech  y.  Allen,  17  New  York, 
,         R.  300 ;  Ex  parte  Kendall,  17  Vesey, 
520;   Dtitton  V.  3forn'son,  lb.  193; 
it  being  well  settled,  that  satisfaction 
of  a  debt  out  of  the  property  of  one 
man,  cannot  give  his  creditors  a  right 
of  recourse   against  the   property  of 
another,  unless  the  debt  thus  satisfied, 
was  as  to  the  whole,  or  in  part,  prima- 
rily due  by  the  latter.     In  Sterling  Y. 
BrigJithlll,  5  Watts,  229,  the  lien  of 
the  plaintifi"  on  the  real  estate  of  his 
debtor,  had   been  divested  under  a 
judgment  obtained  against  the  latter 
by  the  Harrisburg  Bank,  on  a  note 
which  he  had  endorsed,  and  the  plain- 
tiiF  asked  to  be  substituted  to  another 
judgment  obtained  by  the  bank  on  the 
same  note,  against  the  maker,  on  the 
ground  that,  as  the  loss  of  the  lien 
grew  out  of  the  payment  of  a  debt,  for 
which  a  third  person  was  primarily 
liable,  the  latter  was  equitably  bound 
to  make  good  the  loss  thus  occasioned. 
But  it  appeared  from  the  evidence, 
that  the  note  had  been  given  by  the 
drawer  and  endorser,  who  were  part- 
ners, in  the  course  of  a  partnership 
transaction,  while  there  was  nothing 
to  show  what  was  the  state  of  the 
partnership  accounts  between   them. 
And  it  was  held  by  the  court,  that  in 
the  absence  of  such  evidence,  it  was  im- 
possible to  direct  that  the  estate  of  the 


one,  should  be  obliged  to  make  good 
a  debt  paid  by  the  other,  for  the  bene- 
fit of  the  creditors  of  the  latter.  What 
has  been  said  is  sufiicient  to  render  it 
plain,  that  a  judgment  or  other  encum- 
brance can  never  be  rightfully  thrown 
on  the  estate  of  a  surety  for  the  pur- 
pose of  clearing  the  way  for  other 
creditors,  whose  demands  are  solely 
against  the  principal ;  Aijres  v.  Hus- 
ted,  15  Conn.  504;  Johns  y.  Reardon, 
11  Maryland,  465  ;  and  hence  the 
payment  of  a  judgment  out  of  the 
assets  of  a  husband,  to  the  exclusion 
of  a  subsequent  encumbrancer,  will 
give  the  latter  no  right  of  subrogation 
to  a  mortgage  on  the  real  estate  of  the 
wife,  although  given  as  security  for 
the  judgment,  it  being  well  settled 
that  the  wife  is,  under  those  circum- 
stances, entitled  to  all  the  immunities 
of  a  surety ;  j^ost,  part  2,  note  to  Tlie 
EarlY.  The  Countess  of  Huntingdon  ; 
Dorr  Y.  Shaw,  4  Johnson,  Ch.  17. 

But  where  a  proper  case  is  made 
out,  assets  will  be  marshalled,  even 
as  between  the  estates  of  two  diffe-  < 
rent  debtors,  for  the  purpose  of  doing 
equity  among  their  respective  credi- 
tors. Thus,  a  creditor  who  seeks  to 
enforce  the  lien  of  a  judgment  obtain- 
ed for  a  partnership  debt,  against  the 
estate  of  a  deceased  partner,  may  be 
compelled  by  the  creditors  of  the  lat- 
ter to  resort,  in  the  first  instance,  to 
the  partnership  property  in  the  hands 
of  the  surviving  partner  ;  Newsom  v. 
31'Lendon,  6  Georgia,  392. 

The  doctrine  is  well  illustrated  by 
the  case  of  N'effY.  3IiUer,  8  Barr,  347, 
where  the  question  was  as  to  the  right 
of  the  judgment-creditors  of  a  surety, 
whose  lands  had  been  taken  in  pay- 
ment of  another  judgment  against 
himself  and  the  principal,  to  substitu- 


224 


MARSHALLING     ASSETS. 


tion  to  tlae  judgment.  The  objection 
was  taken,  that  although  as  between 
creditors  of  the  same  debtor,  those 
who  had  but  one  fund  could  not  be 
deprived  of  their  remedy  by  the  elec- 
tion of  others  who  had  two,  yet,  that 
this  did  not  hold  good  where  the  fund 
belonged  to  different  persons.  But  it 
was  held  by  the  court,  that  this  rea- 
soning does  not  apply  where  the  rela- 
tion between  the  two  debtors  is  such, 
as  to  render  it  more  equitable  that  the 
debt  should  be  paid  by  one  than  the 
other.  "  The  peculiarity  of  the  ques- 
tion before  us,"  said  Bell,  J.,  is, 
"  that  one  creditor,  having  a  joint 
and  several  encumbrance  against  the 
estates  of  two  distinct  debtors,  claimed 
and  received  the  amount  of  that  en- 
cumbrance, from  the  separate  estate 
of  one  of  the  debtors,  and  thus  de- 
feated the  claim  of  a  lien  creditor  of 
the  latter.  It  is  then  the  case  of  two 
funds  belonging  to  different  debtors, 
and  not  an  instance  of  a  double  fund 
belonging  to  a  common  debtor.  Un- 
der such  circumstances,  a  court  of 
equity  will  not,  in  general,  compel  the 
joint  creditor  to  resort  to  one  of  his 
debtors  for  payment,  so  as  to  leave  the 
estate  of  the  other  debtor  for  the  pay- 
ment of  his  separate  and  several  debt, 
for,  as  between  the  two  debtors,  this 
might  be  inequitable  ;  and  the  equity 
subsisting  between  them  ought  not  to 
be  sacrificed  merely  to  promote  the 
interest  of  the  separate  creditor.  Nor 
will  chancery,  for  the  same  reason, 
substitute  the  several  to  the  place  of 
the  joint  creditor,  who  has  compelled 
payment  from  the  estate  of  the  debtor 
of  the  former.  But  where  the  joint 
debt  ought  to  be  paid  by  one  of  the 
debtors,  a  court  of  equity  will  so  mar- 
shal the  securities  as  to  compel  the 


joint  creditors  to  have  recourse  to  that 
debtor,  so  as  to  leave  the  estate  of  the 
other  open  to  the  claims  of  his  indi- 
vidual creditors;  or,  if  the  joint  credi- 
tor has  already  appropriated  the  latter 
fund,  it  will  permit  the  several  credi- 
tors to  come  in  pro  tanto,  by  way  of 
subrogation,  upon  the  fund  which 
ought  to  have  paid  the  joint  debt ;  1 
Story,  Eq.  sec.  642,  643;  per  Lord 
Eldon,  ex  2^(iT'te  Kendall,  17  Vesey, 
521;  Sterling  Y.  Brlglithlll,  5  W.  229. 
Thus,  if  A.  have  a  judgment,  which 
is  a  lien  on  the  lands  of  B.  and  C, 
and  D.  own  a  younger  judgment, 
which  is  a  lien  on  the  lands  of  C. 
only,  and  the  joint  judgment  be  levied 
on,  and  paid  out  of  the  estate  of  C,  to 
the  exclusion  of  the  younger  judg- 
ment, D.  will  not  be  subrogated  to  the 
rights  of  A.,  to  enable  him  to  obtain 
from  the  estate  of  B.  payment  of  his 
several  judgment;  for  B.  was  not  the 
debtor  of  D.,  and  for  aught  that  ap- 
pears, C.  may  be  indebted  to  B.  to  the 
full  amount  of  A.'s  judgment.  But 
if  B.  and  C.  were  partners,  and  gave 
the  first  judgment  on  the  partnership 
account;  and  on  a  settlement  of  ac- 
counts between  them,  it  appears  that 
B.  was  indebted  to  C.  to  the  amount 
of  the  joint  judgment,  the  judgment 
creditor  of  C.  would  be  substituted  as 
against  the  estate  of  B.,  ^j?-o  tanto ; 
Dorr  V.  Shaio,  4  Johnson,  Ch.  Hop. 
17.  It  would  be  the  same  if  the 
judgment  was  recovered  by  A.  for 
B.'s  proper  debt,  C.  being  merely 
surety;  for  in  these  cases,  B.  ought 
to  have  paid  the  judgment,  and  C.'s 
estate  taken  for  it,  to  the  exclusion  of 
C.'s  judgment-creditors,  he  ought,  on 
equitable  principles,  to  be  permitted 
to  receive,  out  of  B.'s  estate,  so  much 
as  he  had  lost  by  the  application  of 


ALDRICH     V.     COOPER. 


225 


C.'s  estate  to  the  payment  of  T>.'s 
proper  debt.  Nor  can  the  subsequent 
judgment-creditors  of  B.  complain  of 
this.  They  acquired  their  securities 
with  a  full  knowledge  of,  and  subordi- 
nate to  the  prior  joint  judgment,  and 
have  no  legal  or  equitable  right  to  de- 
mand that  a  mere  surety  shall  dis- 
charge it  for  their  benefit. 

"  The  principles  that  have  been 
brought  to  view  are  of  easy  applica- 
tion in  this  instance,  and,  indeed,  the 
illustration  which  has  been  oifered 
exactly  embraces  the  case.  Here  is  a 
surety,  whose  money  has  been  applied 
in  payment  of  the  debt  of  his  princi- 
pal, to  the  exclusion  of  his  own  pro- 
per creditors.  That  he  would  be  en- 
titled to  come  in,  by  way  of  substitu- 
tion, upon  the  estate  of  the  principal, 
is  every-day  equity;  and  I  think  it 
equally  clear,  that  his  creditor,  who 
has  suffered  by  the  appropriation  of  a 
fund  which  otherwise  would  have 
been  available  for  the  discharge  of 
his  claim,  may  well  ask  to  stand  upon 
this  equity,  to  the  extent  of  the  de- 
privation to  which  he  has  been  sub- 
jected." 

In  Ebenhardt's  Appeal,  8  W.  &  S. 
327,  where  a  similar  question  was 
presented,  the  court  decided  against 
the  substitution.  Land,  subject  to  a 
judgment,  had  been  sold  under  an 
agreement  between  the  vendor  and 
the  vendee,  that  certain  notes  which 
had  been  given  for  a  portion  of  the 
purchase-money,  should  be  held  as 
a  security  for,  and  with  the  view 
of  being  appropriated  to  the  pay- 
ment of  the  judgment.  This  agree- 
ment was  relied  on  by  subsequent 
encumbrancers,  whose  lien  on  other 
land  of  the  vendor  was  excluded  by 
the  judgment,  as  entitling  them  to  be 

VOL.  II. 15 


substituted  to  it  as  against  the  land 
conveyed  to  the  vendee.  But  this 
was  denied  by  the  court,  on  the 
ground  that  although  a  creditor  might 
be  bound  as  between  two  funds  be- 
longing to  the  debtor,  to  select  that 
which  would  not  interfere  with  the 
claims  of  another  creditor,  he  was  not 
subject  to  any  such  restriction  as  be- 
tween the  estates  of  different  debtors, 
but  might  proceed  against  either,  even 
when  the  result  was  to  deprive  the 
other  creditor  of  the  power  of  recover- 
ing his  debt. 

This  decision  seems  questionable, 
even  if  it  be  admitted  that  assets  can- 
not be  marshalled  as  between  different 
debtors,  merely  on  the  ground  that 
one  has  paid  a  debt,  which  is  prima- 
rily or  equitably  payable  by  the  other. 
It  is  certainly  true,  that  a  creditor 
who  has  a  right  of  recourse  against 
two  debtors,  cannot  be  restricted  to 
proceeding  against  one,  for,  except  in 
rare  and  exceptional  cases,  no  such 
restriction  will  be  imposed  on  his 
election  to  take  either  of  two  funds 
in  the  hands  of  the  same  debtor.  But, 
although  the  creditor  cannot  be  re- 
strained from  taking  any  legal  mode 
of  obtaining  satisfaction,  yet,  after  he 
has  been  satisfied,  and  his  claims  are 
no  longer  in  the  way,  other  creditors 
will  be  allowed  to  succeed  to  the 
remedies  which  he  has  not  used, 
when  they  have  been  injured  by  those 
which  he  has.  And,  as  in  this  state 
of  the  case  he  cannot  be  prejudiced, 
it  is  only  requisite  to  consider  the  ef- 
fect of  what  is  done  upon  the  other 
parties  interested.  And  the  better 
opinion  would  seem  to  be,  that  where, 
as  in  Ehenhardt's  Appeal,  and  Neff 
v.  Miller,  a  creditor  has  a  specific  lien 
on  a  fund,  of  which  he  is  deprived  by 


226 


MARSHALLING     ASSETS. 


the  action  of  another  creditor  in  en- 
forcing a  judgment,  -whicli  is  prima- 
rily binding  on  another  fund,  the  mere 
fact  that  the  funds  belong  to  different 
persons,  cannot  defeat  the  right  of 
subrogation,  if  it  clearly  appear  that 
the  one  which  Las  not  been  taken, 
was  primarily  applicable  to  the  pay- 
ment of  the  debt  discharged  out  of 
the  other. 

The  course  of  argument  adopted  in 
Neff  V.  Miller,  might,  perhaps,  be 
pushed  to  the  extent  of  authorizing  a 
general  creditor  of  a  surety,  who  has 
paid  the  debt  of  his  principal,  to  ob- 
tain substitution  against  the  latter, 
even  when  no  specific  lien  has  been 
lost  on  the  estate  of  the  surety.  But 
this  would  be  going  further  than  any 
court  has  yet  gone,  or  is  perhaps  likely 
to  go,  though  not  further  than  the  re- 
sult obtained  every  day  by  attachment, 
without  any  special  equity. 

In  favor  of  Sureties. — There  are  no 
cases  in  which  the  doctrine  under  con- 
sideration applies  with  more  force,  or 
is  supported  more  strongly  by  reason 
and  equity,  than  in  those  which  arise 
as  between  principal  and  surety  on  the 
one  hand,  and  the  creditor  with  whom 
they  have  contracted  on  the  other. 
Nothing  is  better  settled  in  this 
country,  than  the  right  of  the  surety 
to  subrogation  upon  payment  of  the 
debt,  to  all  the  remedies  of  the 
creditor  against  the  pei'son  or  estate 
of  the  principal ;  {ante,  vol.  1,  p.  144  ;) 
Hilly.  Manser,  11  Grattan,  522;  J)o- 
zier  V.  Lewis,  27  Mississippi,  679; 
ErJgerhj  v.  Emerson,  3  Foster,  555 ; 
Loio  V.  Blodfjett,  1  Id.  121  ;*2  Ameri- 
can Leading  Cases,  309 ;  Post,  Part 
2,  note  to  Recs  v.  Bcrringfon.  Nor 
docs  this  right  stop  short  with  the 
person  or  estate  of  the  principal.     It 


extends  to  all  securities  binding  the 
person  or  estate  of  third  persons,  which 
have  been  created  or  transferred  on 
account  of  the  debt;  {ante,  vol.  1, 
145.) 

The  application  of  this  doctrine 
is  encumbered  with  a  technical  dif- 
ficulty, in  England,  which  has  little 
or  no  place  in  the  law  of  this  coun- 
try. It  is  well  settled  here,  that 
the  surety  is  entitled  to  file  a  bill  to 
compel  payment  of  the  debt  by  the 
principal,  as  soon  as  it  reaches  matu- 
rity. It  is  more  doubtful  whether  he 
can  compel  the  creditor  to  suspend 
the  remedy  for  the  debt  against  him- 
self, and  enforce  it  against  the  prin- 
cipal ;  In  re  Bahcoch,  3  Story,  393. 
And  it  would  seem  settled,  that  in 
general  he  cannot,  without  paying  the 
amount  of  the  debt  into  court,  or  giv- 
ing security  for  its  payment;  Wright 
V.  Simpson,  6  Vesey,  714;  Gecldisv. 
Ilaick,  1  Watts,  289.  What  would  be 
the  effect  of  such  a  payment  made 
under  the  direction  of  a  court  of 
equity,  is  not  very  apparent.  But  if, 
without  seeking  or  obtaining  a  decree 
in  equity  in  the  first  instance,  he  make 
payment  in  pais  of  a  debt  secured  by 
the  bond  of  the  principal,  and  then 
come  into  equity  to  obtain  an  assign- 
ment of  the  bond,  it  will  be  refused 
under  the  decisions  in  England,  on 
the  ground  that  the  payment  is  an  ex- 
tinguishment of  the  debt,  and  of  all 
the  personal  obligations  of  the  debtor; 
Gammon  v.  Stone,  1  Vesey,  339 ; 
Woffington  v.  Sparks,  2  Vesey,  509  ; 
ante,  vol.  1, 138.  And  the  law  was  so 
held  by  Lord  Eldon,  in  Copis  v.  Mid- 
dleton,  1  Turner  &  llussel,  224,  al- 
though the  eiFcct  of  excluding  the 
surety  from  the  bond  of  the  principal, 
was  to  postpone  him  to  specialty  ere- 


ALDRICH     V.     COOPER. 


227 


ditors  in  the  administration  of  an  in- 
solvent estate,  and  deprfve  him  of  all 
means  of  obtaining  indemnity.  This 
case  was  followed  in  Jones  v.  Davids, 
4  Russell,  277,  notwithstanding  an 
assignment  of  the  bond  of  the  princi- 
pal to  the  surety,  at  the  time  of  pay- 
ment. And  in  Doichiggin  v.  Bourne, 
1  Younge,  111;  2  Youuge  &  Coll. 
462,  a  surety  who  had  discharged  a 
judgment  obtained  against  himself, 
was  refused  substitution  to  a  judgment 
against  the  principal,  in  another  ac- 
tion, brought  for  the  same  debt. 

But  although  the  surety  cannot, 
as  the  law  is  held  in  England,  en- 
force a  cause  of  action  against  the  per- 
son of  the  principal,  which  he  has  dis- 
charged by  payment,  he  may  enforce 
every  valid  lien  against  his  estate.  He 
is,  therefore,  entitled  to  an  assignment 
of  a  mortgage  given  as  security,  not- 
withstanding the  satisfaction  of  the 
bond  which  it  was  given  to  secure, 
and  when  the  principal  has  given  two 
bonds  at  different  periods  for  the  debt, 
the  payment  of  one  will  not  defeat  the 
right  of  subrogation  to  the  other; 
Hodgson  v.  Shaw,  3  Mylne  &  Keene, 
183  ;  ante,  vol.  1,  p.  198. 

In  this  country,  however,  the  courts 
in  general  proceed  on  the  more  liberal 
principle,  of  regarding  payments  made 
by  a  surety  to  the  creditor,  as  prima 
facie  intended  to  advance  and  not  to 
defeat  his  rights  against  the  princi- 
pal. When,  therefore,  a  surety  pays 
the  bond  of  the  principal  in  full,  and 
takes  or  claims  an  assignment  to  him- 
self, the  transaction  is  regarded  as  a 
purchase  of  the  security,  instead  of  an 
extinguishment,  and  as  investing  him 
with  full  right  and  power  to  use  the 
instrument  for  his  own  indemnity  and 
protection;  ante,  vol.  1,  p.  145.  In  Kuhn 


V.  North,  10  S.  &  R.  399,  the  court 
held,  that  where  an  execution  was  is- 
sued against  several  defendants,  a  pay- 
ment to  the  sheriff  by  one,  would  be 
regarded  as  an  extinguishment  or  a 
purchase  of  the  judgment,  according 
to  the  intention  with  which  the  pay- 
ment was  made;  while  the  case  of 
Burns  V.  Tlie  Huntingdon  Banlc,  1 
Pennsylvania,  R.  395,  decided,  that 
sureties  who  had  paid  a  judgment, 
which  had  been  obtained  against  the 
principal,  were  entitled  to  substitution 
both  on  the  judgment  itself,  and  on 
the  recognizance,  which  had  been  en- 
tered by  the  bail  for  stay  of  execution. 
The  same  point  was  decided  in  Flem- 
ing V.  Beaver,  2  Rawle,  132,  where  it 
was  said,  that  actual  payment  dis- 
charges a  debt  in  law,  but  not  in 
equity,  when  justice  requires  that  it 
should  be  kept  alive,  and  that  the 
parties  should  be  restrained  from  in- 
sisting upon  its  legal  extinction.  In 
Croft  V.  Moore,  9  Watts,  451,  where 
the  whole  question  was  reviewed,  it 
was  said,  that  the  distinction  taken 
in  England,  between  securities,, bind- 
ing the  person,  and  the  estate  of  the 
principal,  was  more  technical  than  real, 
and  had  been  definitively  discarded 
in  Pennsylvania,  and  it  was  accord- 
ingly decided  that  a  payment,  by  a 
surety  of  the  amount  of  an  execution 
against  himself  and  his  co-surety,  en- 
titled him  to  subrogation  to  the  judg- 
ment, for  the  purpose  of  enforcing 
contribution.  In  the  subsequent  case 
of  Morris  V.  Oalford,  9  Barx,  498,  it 
was  held,  that  payments  of  interest  by 
a  surety,  stood  on  the  same  footing 
with  payments  on  account  of  princi- 
pal, and  that  both  would  be  presumed 
to  have  been  made  with  a  view  to 
using  the  security  as  a  means  of  reim- 


228 


MARSHALLING     ASSETS. 


bursement.  Such  payments,  there- 
fore, were  held  entitled  to  preference, 
on  a  subsequent  sale  of  the  estate 
bound  by  the  mortgage,  on  which 
they  were  made,  over  a  judgment  ob- 
tained after  the  execution  of  the  mort- 
gage. It  was,  however,  admitted, 
that  although  the  presumption  in 
such  cases  is  against  the  extinction  of 
the  debt,  it  may  be  rebutted  by  evi- 
dence that  the  surety  intended  to  ex- 
tinguish it.  And  there  can  be  no 
doubt,  that  payment  by  the  surety,  or 
on  his  account,  with  the  money  of  the 
principal,  will  put  an  end  to  the  debt, 
and  to  all  securities  held  for  it ;  Kin- 
ley  V.  Hill,  4  W.  &  S.  426;  ante, 
vol.  1,  p.  154. 

It  may,  consequently,  be  considered 
as  settled  law  in  Pennsylvania,  that 
payment  of  a  bond  or  judgment  by  a 
surety,  far  from  interposing  a  bar  to 
his  recourse  upon  either,  against  the 
principal,  only  serves  to  put  him  in 
the  situation  previously  occupied  by 
the  creditor ;  Latlirop's  Appeal,  1 
Barr,  512;  Bailey  v.  Broxcnfield,  8 
Harris,  41.  And  this  course  of  de- 
cision not  only  attains  the  purposes 
of  substantial  justice  better  than  that 
pursued  in  England,  but  avoids  the 
embarrassing  dilemma  resulting  from 
the  doctrine  held  in  the  latter  coun- 
try, under  which,  if  the  surety  come 
forward  to  claim  and  enforce  the  re- 
medics  of  the  creditor,  without  pay- 
ment, he  may  fail,  on  the  ground  that 
he  is  personally  in  default,  and  is  not 
entitled  to  delay  the  collection  of  the 
debt,  or  compel  proceedings  against 
the  debtor,  while,  if  he  obviate  this 
objection  by  payment,  he  destroys 
what  may  be  his  sole  available  means 
of  indemnity.  In  Copi^  v.  Middle- 
ton,  Lord  Eldon  remarked,  that  when 


he  was  at  the  bar,  they  got  over  the 
difficulty  by  having  the  bond  assigned 
to  a  third  person ;  but  in  Jones  v.  Da- 
vids, an  assignment  to  the  surety  was 
held  not  to  answer  the  purpose  of 
keeping  the  security  alive,  and  pre- 
venting the  extinction  of  the  debt. 
Nor  is  it  easy  to  see  how  the  decree 
in  the  principal  case  could  have  been 
made,  consistently  with  the  doctrine 
laid  down  in  Copis  v.  3Iiddleton,  for, 
if  the  specialty  creditors  exhausted 
the  assets,  it  could  only  be  by  receiv- 
ing them  in  satisfaction  of  their  debts, 
and  if  so,  nothing  would  have  been 
left,  on  which  the  simple  contract 
creditors  could  come  for  a  remedy. 

It  is  well  settled,  that  payment  by 
a  drawer  or  endorser,  will  not  extin- 
guish a  bill  or  note  as  against  the 
maker  or  acceptor,  before  the  debt  has 
passed  into  judgment ;  Calloio  v.  Lau- 
rence, 3  M.  &  S.  95 ;  Hihhard  v.  Jack- 
son, 4  Bing.  390 ;  Williams  v.  James, 
15  Q.  B.  498 ;  Gould  v.  Eager,  7  Mass. 
615;  or  even,  as  the  better  opinion 
would  seem  to  be,  after  judgment  has 
been  obtained  against  the  party  who 
makes  the  payment ;  Clason  v.  Mor- 
ris, 10  Johnson,  524;  Wilson  v. 
Wright,  7  Richardson,  399;  and  the 
distinction  between  the  position  of  an 
endorser  and  that  of  an  ordinary 
surety  is,  so  far  as  this  point  is  con- 
cerned, at  best  merely  technical. 
Moreover,  to  make  payment  an  ex- 
tinguishment po-  se,  independently  of 
the  parties  by  whom,  and  the  purpose 
for  which  it  is  made,  it  must  be  made 
when  the  debt  falls  due,  and  not  at 
any  subsequent  period.  Payment  at 
the  day  may  be  performance,  and  thus 
put  an  end  to  obligation  by  fulfilment, 
and  irrespectively  of  intention;  but 
payment  after  the  day  will  not  operate 


ALDRICH     V.     COOPER. 


229 


as  satisfaction  even  at  law,  unless  the 
parties  so  intend  it;  and  equity  obvi- 
ously should  not  go  beyond  the  law, 
except  for  the  purpose  of  doing  jus- 
tice, and  throwing  the  burden  of  the 
debt  on  those  by  whom  it  should  ulti- 
mately be  borne;  anfe,yo\.  1,  p.  140, 
155;  M'Inti/re  v.  Miller,  13  M.  &  S. 
725;  Kington  v.  Kington,  11  Id. 
233 ;  Thomas  v.  Croft,  7  Exchequer, 
728 ;  Buck  V.  Blanchard,  2  Foster, 
303.  This  distinction,  which  seems 
to  have  been  overlooked  by  chancery 
in  England,  although  well  settled  in 
the  common  law  tribunals,  might,  if 
adverted  to,  have  obviated  the  techni- 
cal difficulty,  which  was  held  insur- 
mountable in  Copis  V.  Middleton; 
punctual  payment  being  rare  when 
sureties  are  in  question,  and  the  delay 
of  a  day  certainly  excusable  if  neces- 
sary to  preserve  the  right  of  subroga- 
tion; ante,  vol.  1,  139.  We  may, 
therefore,  notwithstanding  the  respect 
due  to  the  authority  of  Lord  Eldon, 
prefer  the  decisions  in  this  country  to 
those  in  England,  as  more  consistent, 
not  only  with  equitable  principles,  but 
with  the  strict  and  technical  rules  of 
law. 

This  view  is  fully  sustained  by  the 
cases  in  New  York,  as  well  as  by 
those  in  most  of  the  other  states 
of  the  Union;  ante,  vol.  1,  p.  145; 
which  establish,  that  a  payment  by 
those  who  are  secondarily  liable  for  a 
debt  or  duty,  will  operate  as  a  pur- 
chase, and  not  as  an  extinguishment, 
unless  there  is  a  manifest  intention  to 
extinguish,  and  will  give  a  right  to 
enforce  the  debt  against  every  one, 
whose  liability  is  primary,  as  com- 
pared with  that  of  the  person  by 
whom  the  payment  is  made.  Thus, 
in    Cuyler    v.    Ensworth,    6    Paige, 


32,  a  surety  who  had  satisfied  a 
judgment  against  himself  and  his  co- 
sureties, was  held  entitled  to  substi- 
tution to  the  judgment,  as  a  means  of 
enforcing  contribution  from  them. 
And  in  Eddy  v.  Traver,  G  Paige,  521, 
the  principle  was  said  to  apply  to  cases 
growing  out  of  the  relative  position 
of  the  parties,  as  well  as  to  those 
which  have  their  origin  in  contract ; 
and  it  was  decided,  that  where  land 
aliened  with  warranty  by  an  heir,  was 
sold  for  the  payment  of  the  debts  of 
the  ancestor,  the  alienee  was  entitled 
to  an  equitable  lien  on  the  residue  of 
the  descended  estate,  which  remained 
unsold  in  the  hands  of  the  heir.  But 
the  payment  which  gives  rise  to  the 
equity,  must  not  be  in  itself  inequi- 
table, nor  such  as  to  call  any  counter- 
vailing equity  into  being  ;  and  hence, 
the  payment  of  a  debt  by  a  surety,  for 
the  purpose,  and  with  the  effect  of  pro- 
curing the  withdrawal  of  a  levy  which 
has  been  made  on  the  goods  of  the 
principal,  will  deprive  him  of  the  right 
of  substitution,  the  judgment  against 
his  co-sureties,  by  depriving  them  of  a 
lien  which  would  have  been  effectual 
for  their  exoneration,  had  the  sheriff 
proceeded;  Per  Lee  v.  Onderdonl; 
19  Barbour,  562. 

The  principle  on  which  these  de- 
cisions are  founded,  has  a  wide  and 
extensive  operation,  reaching  beyond 
the  ordinary  relation  of  principal 
and  surety,  to  every  case  in  which 
one  man  has  agreed  or  become 
bound  to  assume  the  burden  of  an 
obligation,  in  ease  of  another;  as 
where  the  purchaser  of  land  promises 
to  pay  the  judgments  or  liens  with 
which  it  has  been  encumbered,  while 
in  the  hands  of  the  vendor;  Morris 
V.  Oakford,  9  Barr,  498 ;  or  where 


230 


MARSHALLING     ASSETS. 


one  partner  makes  himself  responsible 
for  the  debts  of  the  firm,  in  conside- 
ration of  the  withdrawal  of  another, 
or  of  a  transfer  of  the  assets;  The 
J^tna  Ins.  Co.  v.  Wires,  2  Williams, 
93  ;  which  will  entitle  the  vendor  in 
the  former  case,  and  the  outgoing  part- 
ner in  the  latter,  to  subrogation,  in 
the  event  of  their  being  compelled  to 
fulfil  obligations  which  have  become 
those  of  another,  and  thus  virtually 
ceased  to  be  their  own.  And  the  better 
opinion  would  seem  to  be,  that  the  ques- 
tion whether  a  payment  is  to  be  i-egard- 
ed  as  a  purchase,  or  as  an  extinguish- 
ment, should  depend,  in  every  instance, 
in  equity,  and  even  at  law,  on  the  rights 
and  duties  of  the  parties,  and  not  on 
mere  technical  considerations;  and 
that  no  debt  should  be  regarded  as 
absolutely  paid,  when  a  due  regard  to 
the  purposes  of  justice,  and  the  inten- 
tion with  which  the  payment  is  made, 
requires  that  it  should  be  kept  alive, 
either  generally  or  as  against  particu- 
lar persons ;  Robinson  v.  Leavitt,  7 
New  Hampshire,  100 ;  Low  v.  Blod- 
gett,  1  Foster,  121 ;  Brech  v.  Blan- 
chard,  2  Id.  303  ;  Richardson  v.  The 
Washington  Bank,  3  Metcalf,  536  ; 
ante,  vol.  1.  But,  in  order  to  call 
this  doctrine  into  operation,  and  ren- 
der a  payment  equivalent  to  a  pur- 
chase, two  things  must  concur;  first, 
a  right  to  purchase  and  keep  alive, 
and  next,  an  intention  to  exercise  the 
right,  and  buy  the  debt  instead  of  ex- 
tinguishing it ;  and  hence,  while  a 
surety  may  lose  the  right  of  subroga- 
tion, by  a  payment  made  in  a  mode  or 
under  circumstances  which  show  that 
the  purpose  was  to  satisfy  or  extin- 
guish, a  principal,  will  not  be  per- 
mitted to  keep  an  obligation  in  being 
against  the  surety,  by  doing  that  which 


deprives  it  of  all  validity,  as  against 
himself;  ante,  vol.  1,  p.  140,  155. 

In  the  cases  hitherto  considered,  the 
right  of  subrogation  grew  out  of  the 
intervention  of  one  debtor,  at  the  in- 
stance of  another,  or  out  of  some  ex- 
press or  implied  agreement  between 
those  who  were  liable  for  the  debt, 
but  it  may  equally  well  arise  from  the 
acts  of  the  creditor,  without,  or  even 
against  the  consent  or  wish  of  the 
debtor.  Thus,  it  is  well  known,  that 
a  chose  in  action  may  be  made  the  sub- 
ject of  a  sale,  which  will  entitle  the 
assignee  to  all  the  remedies  or  securi- 
ties held  by  the  vendor,  and  to  en- 
force them  by  action,  in  the  name  of 
the  assignor,  but  for  his  own  benefit. 
The  form  of  the  transaction  is  imma- 
terial, if  the  intent  be  apparent ;  and 
hence,  although  one  man  cannot  lay 
another  under  a  pecuniary  obligation  at 
law,  by  paying  his  debts,  in  the  absence 
of  an  express  or  implied  duty  or  au- 
thority; Carter  v.  Black,  4  Dev.  & 
Bat.  425 ;  yet,  such  a  payment  will 
be  construed  as  a  purchase  in  equity, 
whenever  the  purpose  plainly  is  to  keep 
the  debt  alive,  and  not  to  extinguish 
it,  and  will,  consequently,  give  rise  to 
a  right  of  subrogation  to  the  debt 
itself,  and  to  all  the  remedies  and  se- 
curities by  which  it  is  attended  or 
protected  ;  Carter  v.  Jones,  5  Iredell, 
193  :  and  the  same  result  will  follow 
from  every  contract  with  the  creditor, 
by  which  the  debt  is  assumed  or 
guarantied,  at  his  request,  although 
without  that  of  the  debtor,  because 
such  a  guaranty,  followed  by  a  pay- 
ment, operates  as  a  purchase,  and  in- 
vests the  guarantor  with  all  the  powers 
conferred  by  the  assignment  of  a  chose 
inaction;  ante,  vol.  1, 152, 171;  Ellcin- 
ton  V.  Newman,  8  Harris,  481 ;    Tal- 


ALDRICH     V.     COOPER. 


231 


madge  v.  Burlingame,  9  Barr,  21 ; 
Feak  V.  Dorwin,  25  Vermont,  28 ;  2 
Araer.  Lead.  Cases,  408,  4tli  ed.  The 
law  was  so  lield  in  Matthews^.  Aiken, 

1  Comstock,  595,  and  payment  of  a 
debt,  under  a  guaranty,  given  at  the 
request  of  the  creditor,  but  without 
that  of  the  debtor,  said  to  give  a  right 
of  subrogation  against  the  latter,  be- 
cause the  object  of  the  guaranty  be- 
ing indemnity,  and  neither  to  exone- 
rate the  debtor,  nor  afford  the  creditor 
a  double  satisfaction,  payment  neces- 
sarily entitled  the  guarantor  to  all  the 
remedies  of  the  creditor,  for  reasons 
closely  analogous  to  those  which  make 
it  the  duty  of  the  insured  to  abandon 
to  the  insurer,  on  receiving  compen- 
sation for  a  total  loss. 

What  has  been  said,  may  serve  to 
show  the  fallacy  of  the  notion,  that 
payment  by  a  stranger,  necessarily 
puts  an  end  to  all  further  liability  for 
the  debt,  unless  meant  as  a  purchase. 
For  the  debtor  must  choose  between 
a  repudiation  of  the  payment,  incom- 
patible with  pleading  it  as  a  defence 
against  the  creditor,  and  a  ratification, 
which  may  be  made  the  basis  of  a  suit 
in  assumpsit,  when  the  question  will 
be,  whether  the  payment  was  made 
with  a  view  to  reimbursement,  or  by 
way  of  charity  or  benefaction  ;  James 
V.  Isaacs,  12  C.  B.  791 ;  Belshaw  v. 
Bush,  11  Id.  195.  Merely  to  aver, 
that  a  debt  has  been  paid,  is  no  de- 
fence either  at  law  or  in  equity,  with- 
out a  further  averment  that  the  pay- 
ment was  made  by  the  debtor,  or  by 
some  one  in  his  behalf,  and  that  the 
money  was  received  by  the  creditor 
in  satisfaction ;  Bt-eck  v.  Blancliard, 

2  Foster,  303 ;  Kington  v.  Kington, 
11  M.  &  W.  233. 

The  general  principle,  that  privity 


of  contract  is  not  essential  to  subro- 
gation, which  may  be  founded  on  equi- 
table obligations  growing  out  of  the 
contracts  of  others,  applies  with  full 
force  in  questions  arising  under  the  law 
of  suretyship;  Cottrell's  Appeal,  11 
Harris,  294.  Thus,  nothing  is  bet- 
ter settled,  than  that  sureties  are  en- 
titled to  be  subrogated,  not  merely  to 
a  judgment  against  the  principal,  but 
against  his  bail,  in  the  action  in  which 
the  judgment  was  obtained;  Parsons 
V.  Briddock,  2  Vernon,  608 ;  Burns 
V.  The  Huntingdon  Bank,  1  Penna. 
R.  395.  The  reason  for  this  seems 
to  be,  that  where  a  new  party  volun- 
tarily interposes  himself  in  the  con- 
tract, and  renders  himself  liable  for 
its  fulfilment,  on  behalf  of  the  prin- 
cipal, he  must  look  to  the  latter,  and 
not  to  the  prior  sureties,  for  reim- 
bursement, if  compelled  to  fulfil  it 
himself.  And  as  they  may  have 
been  prejudiced  by  the  delay,  or 
indulgence  induced  by  his  inter- 
vention, they  have  a  right  to  re- 
quire that  the  burden  of  payment 
shall  be  thrown  upon  him.  Thus, 
in  Pott  V.  Nathans,  1  W.  &  S.  156, 
the  surety  was  held  entitled  to  subro- 
gation to  a  judgment  on  a  note, 
which  had  been  given  by  the  de- 
fendants to  the  creditor,  in  order  to 
obtain  a  stay  of  execution  against  the 
principal.  This  reasoning,  however, 
only  applies  as  between  those  who  be- 
come answerable  at  different  periods 
as  sureties,  at  the  instance  and  for  the 
benefit  of  the  principal;  and  it  would 
seem  plain,  that  a  guaranty  of  a  debt, 
at  the  request  of,  or  under  a  con- 
tract with  the  principal,  will  invest  the 
guarantor  on  payment,  with  the  rights 
of  an  assignee  for  value,  and  entitle 
him  to  a  recovery  against  all  whose 


0-^0 


MARSHALLING     ASSETS. 


engagements  are  prior  in  date  to  bis 
own ;  ante,  vol.  1,  p.  171. 

Some  of  the  most  difficult  and  im- 
portant questions  in  the  law  of  subro- 
gation, grow  out  of   tbe  contract  of 
insurance.      It  is  well    settled,  tbat 
payment  of   a   total  loss,   or   on   tbe 
basis  of  a  total  loss,  entitles  tbe  insurer 
to  a  cession  or  abandonment  of  tbe 
tbing  insured,  including  every  means 
or  remedy  wbicb  could  or  migbt  be 
used  for  its  recovery,  or  for  obtaining 
compensation  for   its   loss,  by  tbose 
wbo   eflfected   tbe    insurance,    wbose 
rigbts  pass  to  and  vest  in  tbe  insurer, 
by  implication  of  law,  even  wben  no 
act  is  done  on  tbeir  part  to  transfer 
tbem;  Comeggys  v.  Vasse,  1  Peters, 
193,    205;    Randall  v.    Cocliran,   1 
Vesey,  98 ;    White   v.  Dohimon,  14 
Simons,  273;    Grade    v.    The  Neio 
Torh  Ins.    Co.,  8   Jobnson,  246;   2 
American  Lead.  Cases,  571,  4tb  ed. ; 
Hart   V.    The  Western  Railroad,  13 
Metcalf,  99.     Hence  tbe  insurer  of  a 
vessel  may  sue  at  law,  or  proceed  in 
tbe  admiralty,  in  tbe  name  of  tbe  in- 
sured, but  for  bis  own  benefit,  against 
tbe  owner  of  anotber  vessel  by  wbicb 
tbe  former  was  run  down  or  injured; 
Monticello    v.   Mollison,  17  Howard, 
152 ;  or  tbe  insurer  of  goods  against 
the  carrier  to  whom   they  were   en- 
trusted   for    transportation,    and    in 
wbose  bands  they  were  lost;   Smith 
v.    Scott,  4  Taunton,  126  ;  Garrison 
V.    The  Ins.   Co.,   19   Howard,  312; 
Burnside   v.    The    Union  Steamboat 
Co.,  10  Richardson,  113;   Steele  v. 
The    Franklin  Ins.    Co.,    5    Harris, 
290 ;  while  payment  of  an  insurance 
on  a  bouse  will  give  a  right  of  subro- 
gation to  tbe  compensation  due  by  tbe 
hundred  for  its  destruction   by   the 
hands  of  a  mob;  Mason  v.  Sainsbiiri/, 


3   Douglass,  61 ;   Clark  v.  Bli/thing, 
2  B.  &  C.  254 ;  or  by  a  railroad  com- 
pany for  injuries  caused  by  the  sparks 
from    a    locomotive ;     Hart   v.    The 
Western    Railroad,  13    Metcalf,  99. 
The    right    arises   immediately  upon 
payment,  without    an    abandonment, 
and,    notwithstanding    a    refusal    to 
abandon,  and  cannot  be  defeated  by 
the    subsequent  acts  of  tbe  owner; 
Hart    V.     The    Western    Railroad; 
but  being  purely  equitable,  must  be 
enforced  at  law  by  sueing  in  tbe  name 
of  tbe  insured,  and  not  in  that  of  the 
insurer;  The  Rockingliam  31.  Ins.  Co. 
V.  Bosher,  39  Maine,  253.     The  rule 
goes  beyond  tbe  insurance  of  mate- 
rial objects,  and   applies  to  chases  in 
action,  or  rights  given  by  contract. 
Thus,  an   insurance    or   guaranty  of 
the  goodness  of  a  debt,  or  of  tbe  sol- 
vency of  the  debtor,  has  been  shown  to 
entitle  the   guarantor  to  substitution 
to  tbe  rigbts  of  the  creditor  immedi- 
ately upon  the  fulfilment  of  the  obli- 
gation imposed  by  the  guaranty;  ante, 
230.     In  like  manner  an  insurance  of 
a  lien  or  security  for  a  debt,  in  the  form 
of  a  mortgage,  or  of  a  vendor's  lien  for 
payment,  after  the  legal  or  equitable 
estate  in  the  land  or  chattel  sold,  has 
vested  in  tbe  vendee,  will  give  rise  to 
a  right  of  subrogation  as  soon  as  the 
loss  sustained  by  the  insured  has  been 
paid  or  made  good  by  the  insurer,  wbo 
will,  thereupon,  acquire  a  right  to  en- 
force tbe  mortgage,  or  obtain  payment 
of  the  purchase-money,  by  proceeding 
against  tbe  land  in  the  same  manner, 
and  to  the  same  extent  as  if  be  had 
been  guarantor  or  surety ;  2  Araericau 
Leading  Cases,  4th  Am.  ed.  571,  601. 
The  law  was  so  held  with  reference  to 
an  insurance  effected  by  a  vendor  after 
tbe  sale  of  tbe  property,  but  before 


ALDRICH     V.     COrOPER. 


233 


the  payment  of  the  price  or  convey- 
ance of  the  legal  title,  in  The  jEtna 
Ins.  Co.  V.  Tt/ler,  16  Wend.  385  ;  and 
has  been  held  applicable  to  the  insur- 
ance of  a  mortgage,  in  a  number  of 
cases;  Carpenter  v.  The  Washincffon 
Ins.  Co.,  16  Peters,  491 ;  The  Sussex 
M.  Ins.  Co.  V.  Woodruff,  2  Dutcher, 
541 :  some  of  which  decide  that  the 
insurance  will  be  vitiated  by  the  con- 
cealment of  anything  from  the  insurer, 
which  destroys  or  impairs  the  right  of 
subrogation  which  would, ^>?-w«a/acie, 
exist  under  the  facts  actually  made 
known  to  him,  and  on  which  he  may 
have  relied  in  effecting  the  insurance ; 
Smith  V.  The  Columbia  Ins.  Co.,  5 
Harris,  253.  In  likemanner  it  washeld 
in  England,  until  recently,  that  an  in- 
surance on  the  life  of  a  debtor ;  God- 
sal  V.  Boldcro,  9  East,  72 ;  2  Smith's 
Leading  Cases,  292,  5th  Am.  ed., 
would  be  defeated  by  the  payment  of 
the  debt,  which  seems  to  imply  that 
the  debt  would  have  enured  for  the 
benefit  of  the  insurei",  had  it  not  been 
paid.  But  this  course  of  decision  is 
essentially  founded  on  the  supposition, 
that  the  thing  insured  is  the  debt  or 
the  security  for  its  payment,  and  must 
necessarily  stop  short  where  an  insur- 
ance is  effected  on  the  body  of  a  house 
or  vessel,  whether  the  interest  of  the 
person  who  effects  it  be  general,  or  is 
limited  to  a  lien  or  security ;  all  that 
the  insured  can  be  entitled  to,  under 
any  circumstances  being,  a  cession  of 
what  is  or  may  be  left  of  that  which 
he  insured,  and  has  been  compelled 
to  pay  for.  It  was  accordingly  held, 
in  The  Insurance  Co.  v.  TJpdegraff, 
9  Harris,  513,  that  the  insurance  of  a 
house,  for  or  on  account  of  a  vendor, 
will  not  entitle  the  insurers  to  be  sub- 
rogated to  his  lien  for  the  purchase- 


money,  unless  the  circumstances  are 
such  as  to  show  that  the  insurance  was 
of  the  debt  or  security,  and  not  of  the 
building;  and  the  same  thing  is  true  of 
an  insurance  effected  by  a  mortgagee, 
under  an  agreement  with,  and  for  the 
benefit  of  the  mortgagor,  which  will 
entitle  the  latter  to  treat  payment  of 
the  loss  as  an  extinguishment  of  the 
mortgage,  and  thus  deprive  the  insur- 
ers of  the  right  of  subrogation ;  Ker- 
nochan  v.  The  New  Torh  Bowery  Ins. 
Co.,  17  New  York,  K.  428.  But  we 
may,  notwithstanding,  believe  that 
an  insurance  by  a  mortgagee  exclu- 
sively for  his  own  benefit,  must  neces- 
sarily be  limited  to,  and  measured  by 
his  interest,  which  is  well  known  to 
consist  in  the  right  to  use  the  legal 
title  to  the  land  as  a  security,  and  not 
to  amount  to  a  right  of  property,  and 
will  consequently  fall  within  the  scope 
of  the  principle,  which  entitles  the  in- 
surers to  an  assignment  of  the  interest 
of  the  insured,  in  return  for  the  pay- 
ment of  its  price  or  value.  The  gene- 
ral truth  and  soundness  of  this  rule 
are  unquestionable,  and  it  would  seem 
peculiarly  applicable  to  an  insurance 
by  a  mortgagee,  who  might  otherwise 
recover  a  double  satisfaction,  and  find 
his  interest  on  the  side  of  the  destruc- 
tion of  the  property,  and  not  of  its 
preservation.  The  law  was,  notwith- 
standing, held  the  other  way, in  White 
V.  Brown,  2  Gushing,  412  ;  and  King 
V.  The  State  M.  F.  his.,  7  Id.  1,  where 
the  court  were  of  opinion,  that  an  in- 
surance on  a  building  could  not  be 
converted  into  an  insurance  of  a 
debt,  by  proof  that  the  interest  of  the 
insured  was  limited  to  a  mortgage, 
and  that  he  was,  consequently,  en- 
titled to  recover  the  whole  amount  of 
the  loss  for  his  own  benefit,  without 


234 


MARSHALLING     ASSETS. 


crediting  it  to  the  mortgagor,  or  as- 
signing the  mortgage  to  the  insurers. 
But  this  view  is  directly  at  variance 
with  that  taken  by  Story,  in  Carpenter 
V.  The  Washington  Ins.  (7o.,  and  by  the 
Supreme  Court  of  Pennsylvania,  in 
JSmithv.  The  Cohimhia  Ins.  Co.,  ante; 
and  the  better  opinion  would  seem  to 
be,  that  as  the  policy  is  limited  to  a 
description  of  the  thing  which  forms 
the  subject-matter  of  the  insurance, 
and  does  not  purport  to  describe  the 
nature  or  extent  of  the  interest  of  the 
insured,  parol  evidence  may  be  given 
to  show  whether  it  consists  in  an  ab- 
solute right  or  title,  or  is  confined  to 
a  lien  or  mortgage,  without  contra- 
dicting the  writing;  Kernochan  v. 
The  New  Torh  Bowery  Fire  Ins.  Co. 
This  course  is  pursued  every  day  by 
the  insured,  and  must,  therefore,  be 
cfjually  open  to  the  underwriter;  2 
American  Leading  Cases,  633,  4th  ed. 
And  it  would  seem  equally  plain,  that 
the  reason  and  equity  of  the  rule, 
which  makes  payment  of  the  loss  a 
purchase,  and  thus  entitles  the  insur- 
ers to  subrogation,  is  wholly  indepen- 
dent of  the  nature  and  character  of 
the  interest  at  risk,  and  applies  with 
the  same  force  whether  it  grows  out 
of  a  lien  for  a  debt,  or  rises  to  the 
ownership  of  the  property  insured. 
That  there  is  less  occasion  for  the  ap- 
plication of  this  rule  in  the  case  of  in- 
surances against  fire,  than  in  marine  in- 
surances, does  not  arise  from  any  dif- 
ference of  principle,  but  from  the  fact 
that  insurances  against  fire  being  con- 
fined to  the  building,  payment  of  the 
loss  cannot  be  an  equivalent  for,  or  en- 
ure as  a  purchase  of,  the  estate  in  the 
land.  When,  however,  the  interest  of 
the  insured  is  confined  to  a  mortgage, 
the   distinction  disappears,  or  rather 


ceases  to  be  applicable,  and  the  insurers 
will  be  entitled  to  subrogation  on  pay- 
ment; The  Sussex  M.  Ins.  Co.  v.  Wuod- 
rnff,  2  Dutcher,  541.  The  cases  on 
this  diflacult  and  important  question, 
are,  however,  unquestionably  too  en- 
tirely at  variance  with  each  other,  to  be 
brought  within  any  common  principle ; 
that  of  Kernochan  v.  The  New  York 
Boicery  Ins,  Co.,  17  New  York,  428, 
deciding  that  an  insurance  by  a  mort- 
gagee is  prima  facie  an  insurance  of 
the  property,  and  not  of  the  debt, 
even  when  he  is  described  in  the 
policy  as  mortgagee,  although  capable 
of  being  restricted  in  its  operation  by 
proof  that  he  was  acting  solely  for 
himself,  and  not  with  a  view  to  pro- 
tect the  interest  of  the  mortgagor, 
which  is  directly  in  conflict  with 
Smith  Y.  The  Columbia  Ins.  Co.; 
while  the  language  held  by  the  Su- 
preme Court  of  Massachusetts,  White 
V.  Broicn,  and  King  v.  The  State  M.  F. 
Ins.  Co.,  is  equally  irreconcilable  with 
the  view  taken  in  Carpenter  v.  The 
Washington  Ins.  Co.,  and  the  jEtna 
Lis.  Co.  V.  Tyler,  ante.  The  best  exit 
from  the  difficulty  would  probably  be 
found  in  treating  every  insurance  ef- 
fected by  a  mortgagee,  as  made  in  his 
representative  capacity  as  holder  of 
the  legal  title,  and  constituting  a  trust 
for  the  payment  of  the  mortgage,  with 
a  resulting  interest  in  the  mortgagor, 
if  the  debt  were  satisfied,  leaving  the 
parties  free  to  stipulate  otherwise  if 
they  thought  proper,  and  limit  the 
insurance  to  the  debt  by  express  lan- 
guage. The  English  courts  have  re- 
cently overruled  their  earlier  decisions, 
ante,  by  holding  that  an  insurance  on 
the  life  of  a  creditor,  is  simply  a  pro- 
mise to  pay  a  sum  certain  in  the  event 
of  his  death  duriu";  the  continuance  of 


ALDRICH     V.     COOPER. 


235 


the  insurance,  and  will  not  be  defeat- 
ed by  the  discharge  of  the  debt,  be- 
fore he  dies;  Dolby  v.  The  Lfe  Ins. 
Co.  15  C.  B.  365;  which  necessarily 
implies  that  the  insurers  cannot 
be  subrogated  to  the  debt  when 
it  remains  undischarged.  The  same 
view  was  taken  in  TJie  Trenton  31. 
Life  Ins.  Co.  V.  Johnson,  4  Zabriskie, 
576 ;  and  the  courts  of  this  country 
will  probably  ultimately  concur  with 
those  of  England,  in  holding  that  a 
life  insurance  is  not  a  contract  of  in- 
demnity, and  consequently  does  not 
require  proof  of  actual  loss  or  injury, 
although  it  may  be  void  if  made  as  a 
wager,  and  not  for  the  legitimate  end 
of  supplying  a  provision  for  future 
support. 

Subrogation  is  an  equity,  which 
must,  like  other  equities,  be  enforced 
at  law  by  a  suit  in  the  name  of  the 
holder  of  the  legal  title,  and  hence, 
even  if  an  insurance  company  were 
entitled  to  the  remedy  given  by  sta- 
tute for  the  death  of  the  party  whose 
life  they  have  insured,  by  an  accident 
on  a  railroad,  they  would  still  be 
obliged  to  sue  in  his  name,  and  not  ia 
their  own;  The  Conn.  M.  Ins.  Co.  v. 
The  Nieic  York  and  New  Haven  Rail- 
road, 25  Conn.  265. 

The  principle,  on  which  equity 
marshals  assets,  is  not,  however,  con- 
fined to  cases  growing  out  of  the  con- 
flicting claims  of  creditors,  or  the 
struggles  for  indemnity  or  reimburse- 
ment between  those  who  have  made 
themselves  directly  or  indirectly  an- 
swerable for  the  payment  of  debts,  as 
guarantors,  sureties  or  insurers,  and 
may,  in  general  terms,  be  said  to  be, 
that  whenever  a  claim  exists  as  against 
two  funds,  which  ought  to  be  borne 
by  one  rather  than  the  other,  equity 


will  throw  it  on  the  former,  and  exon- 
erate the  latter;  WilJces  v.  Harris, 
2  Barbour,  Ch.  338;  Feet  v.  Beers, 
4  Indiana,  46.  This  may  be  done 
either  by  restricting  the  claimant  to 
the  fund  which  would  ultimately  be 
liable,  or  by  allowing  him  to  proceed 
against  it  in  the  first  instance,  and 
then  substituting  the  parties  interested 
in  that  fund,  to  his  rights  and  reme- 
dies against  the  other.  This  latter 
course  was  adopted  in  the  principal 
case,  where  the  decree  was,  that  if  the 
specialty  creditors  should  exhaust  any 
part  of  the  personal  estate,  the  simple 
contract  creditors  should  stand  in 
their  place  as  against  the  surety.  And 
such  is  the  usual  course  of  equity, 
which  is  chary  of  interfering  with  the 
remedies  of  creditors,  although  when 
these  remedies  have  been  exercised  in 
a  way  to  produce  inequality  or  injus- 
tice between  others,  it  will  use  them 
as  the  means  of  restoring  the  equili- 
brium which  their  use  has  disturbed, 
and  redressing  the  injury  which  it 
has  occasioned;  Mix  v.  Hotchkiss,  14 
Conn.  32 ;  Jones  v.  Zollicoffer,  2 
Hawks,  623 ;  3Iarkham  v.  Calvitt,  5 
Howard,  Miss.  427;  Briggs  v.  The 
Planters  Banh,  Freeman,  Ch.  574. 

Nor  does  this  principle,  although 
more  frequently  applied  in  questions 
growing  out  of  contract,  necessarily 
depend  upon  contract,  whether  arising 
by  implication  of  law,  or  from  express 
stipulation,  but  comes  into  being, 
whenever  the  equitable  relation  be- 
tween the  parties  interested,  is  such 
as  to  require  its  operation.  All  that 
is  necessary  to  give  it  birth,  is  to  show 
that  A.  has  a  claim  against  B.  and  C, 
which,  as  between  them,  should  fall 
upon  B.  rather  than  C.  Equity  will, 
then,  either  compel  A.  to  satisfy  him- 


23G 


MARSHALLING     ASSETS. 


self  at  the  expense  of  B.,  or,  if  this 
cannot  be  done  without  delay  or  risk, 
will  allow  him  to  obtain  satisfaction 
from  C.  in  the  first  instance,  and  will 
then  authorize  C.  to  stand  in  his  place, 
and  use  his  remedy  against  B.,  as  the 
means  of  obtaining  an  indemnification. 
The  mode  in  which  the  right  of  C.  to 
be  exonerated  at  the  expense  of  B. 
originated,  is  quite  immaterial,  if  it 
actually  exist.  It  may  grow  out  of 
contract  as  in  cases  between  principal 
and  surety.  It  may  be  founded  in 
the  relation  in  which  B.  and  C.  stand 
to  some  third  person  by  gift  or  pur- 
chase, as  when  a  legatee  claims  to 
throw  the  burden  of  debts  on  the 
realty,  or  a  purchaser  of  land  subject 
to  a  judgment,  seeks  to  compel  satis- 
faction out  of  other  land,  subsequently 
purchased  from  the  same  vendor. 

In  every  such  case,  the  material 
question  is,  as  to  where  the  burden  of 
payment)  ought,  ultimately  to  rest; 
and  when  this  is  once  determined,  the 
action  of  the  creditor  will  not  be  al- 
lowed to  place  it  elsewhere.  He  may 
not,  and  generally  will  not  be  re- 
strained from  obtaining  satisfaction  of 
the  debt,  from  any  source  liable  for 
its  payment.  But  if  he  call  upon  a 
party  who  is  not  primarily  liable,  he 
will  be  obliged  to  afford  him  every 
means  of  indemnity,  as  against  those 
who  are.  The  principles  thus  asserted, 
are  fully  sustained  by  the  decision  of 
the  Supreme  Court  of  Pennsylvania, 
in  Ki/ner  v.  Kijncr,  G  Watts,  221.  In 
that  case,  the  plaintiff  had  purchased 
land  which  was  bound  by  the  lien  of 
a  judgment,  on  which  he  had  made 
partial  payments,  and  he  now  sought 
to  be  subrogated  to  the  judgment,  as 
against  the  vendor,  to  the  extent  of 
these  payments.    This  application  was 


refused  by  the  court   below,  on  the 
ground  that  no  privity  of  contract  ex- 
isted as  between  the  parties,  and  that 
although  the  vendee  might  be  entitled 
to  an  indemnity  for  the  amount  thus 
paid,  under  the  covenants  in  his  deed, 
that  was  a  ground  for  an  action,  and 
not  for  a  claim  of  substitution.     It 
was,  however,  decided  by  the  Supreme 
Court,  that  to  give  effect  to  such  a 
claim,  no  privity  of  contract  was  neces- 
sary, and  that  it  was  enough  to  show, 
that  as  between  the  party  who  sought 
to   enforce  it,  and  the  party  against 
whom  it  was  sought  to  be  enforced, 
the  obligation  of  payment  rested  on 
the   latter   and   not   on   the  former. 
''  This   right    of  substitution,"    said 
Kennedy,  J.,  "being   grounded  en- 
tirely upon  principles  of  equity,  is  not, 
and  indeed  from  the  very  nature  of 
the  foundation  of  the  right,  cannot  be 
restricted  to  the  case  of  two  or  more 
several  judgment   claimants   against 
the   same    defendant,   whose    claims 
were   originally  founded   entirely  on 
contract,  but  must  be  extended  to  the 
case  of  those  whose  judgments  have 
been  obtained  in  actions  founded  on 
torts,  as  well  as  upon  contract;  be- 
cause the  plaintiff  who  has  recovered 
damages  by  judgment,  in  an  action  of 
trover  or  trespass  de  honis  asjwi-fatis 
for  the  loss  of  his  property,  of  which 
he  has  been  deprived  by  the  illegal 
conduct  of  the  defendant,  has  just  as 
much  right  both  in  equity  and  in  law 
to  be  satisfied,  the  amount  of  the  com- 
pensatory damages  at  least  recovered 
on  such  account,  as  if  his  judgment 
had  been  for  the  price  of  the  property 
agreed  to  be  driven  on  a  sale  and  de- 
livery  thereof,  made   by  him  to  the 
defendant  in  the  judgment. 

"  This  being  the  case,  it  shows  that 


ALDRICH     V.     COOPER. 


237 


substitution  may  be  decreed,  where 
no  contract  of  any  kind  was  ever  en- 
tered into  to  connect  with  each  other 
any  of  the  parties  concerned;  and 
where  no  sort  of  privity  has  ever 
existed,  saving  that  of  each  plaintiff 
being  a  party  to  his  judgment,  with 
the  same  defendant  therein,  which 
we  have  seen  above  is  not  always  the 
case;  as  for  instance,  in  the  case  of 
mortgage  creditors,  where  it  is  not 
necessary  that  the  party  applying  to 
be  substituted,  should  have  any  judg- 
ment at  all,  nor  yet  be  a  party  to 
one;  and  likewise  in  the  case  of  a 
subsequent  vendee  of  one  of  the 
tracts,  who  has  bought  with  a  cove- 
nant on  the  part  of  the  vendor,  that 
it  was  free  from  encumbrances." 

But  although  the  general  right  to 
substitution,  under  such  circumstan- 
ces, was  thus  amply  vindicated,  it  was 
notwithstanding  decided  that  it  could 
not  be  enforced  to  the  detriment  of 
third  persons,  and  that  as  substitution 
to  the  judgment  would  necessarily 
limit  the  powers  of  the  creditor,  it 
could  not  be  granted  for  partial  pay- 
ments, nor  until  he  had  received  full 
satisfaction.  Subject  to  this  restric- 
tion, the  doctrine  above  stated  is  well 
settled,  and  has  been  adhered  to  by 
the  same  court,  on  a  number  of  sub- 
sequent occasions  ;  Hasting' s  case,  10 
Watts,  303 ;  Wallace's  Ajjpeal,  5 
Barr,  103. 

In  Thompson  v.  Murray,  2  Hill, 
Chancery,  204,  213,  volunteers  were 
said  to  have  as  much  right  to  the 
benefit  of  this  principle,  as  pur- 
chasers for  value,  whenever  the  do- 
nor under  whom  they  claim  has 
warranted  the  gift,  and  thus  assum- 
ed the  burden  of  prior  encumbran- 
cers ;    and    it   was    held    to    follow, 


that  one  of  several  donees  under  a 
settlement,  could  not  claim  contribu- 
tion from  the  rest,  for  the  payment  of 
a  judgment  against  the  donor,  binding 
the  land  of  all,  without  proving  that 
he  was  insolvent  at  the  time  of  the 
payment,  because  otherwise,  equity, 
upon  due  application,  would  have 
compelled  the  judgment-creditor  to 
seek  satisfaction  solely  from  him. 
And  the  same  view  was  taken  in 
Gumming  v.  Chimming,  3  Kelly,  460, 
although  under  somewhat  different 
circumstances. 

It  is  proposed  in  this  note  to  con- 
sider the  operation  of  this  doctrine,' 
first  in  those  cases  where  the  rights 
of  the  parties  grow  out  of  their  rela- 
tions to  a  third  person,  by  gift  or  pur- 
chase; and  next,  in  those  where  they 
grow  out  of  their  antecedent  relations 
to  each  other. 

MarslicdJing  assets  in  favor  of  pur- 
chasers.— In  many  instances,  the  obli- 
gations which  are  created  by  contract, 
are  not  solely  personal  to  the  party 
who  creates  them,  but  may  be  enforc- 
ed against  his  property,  even  after  it 
has  passed  into  the  hands  of  third  per- 
sons. Thus,  judgments  are  liens  in 
this  country,  upon  all  the  lands  of  the 
defendant,  whether  in  his  hands  or  in 
those  of  subsequent  purchasers.  All 
debts,  of  whatever  nature,  become 
a  charge  on  the  real  estate  of  the 
debtor,  immediately  upon  his  death. 
And  this  has  always  been  the  case,  as 
to  his  personal  assets.  When,  there- 
fore, lands  subject  to  a  judgment,  are 
sold  to  different  purchasers,  or  when 
real  or  personal  property  is  devised  to 
different  persons,  it  may  be  necessary 
to  determine  on  whom  the  burden  of 
satisfying  the  obligations  of  the  ven- 
dor or  devisor  ought  to  fall. 


238 


MARSHALLING     ASSETS. 


The  simplest  form  in  which  this 
question  can  be  presented,  is,  where  a 
sale  is  made  of  land  bound  by  an  en- 
cumbrance, for  the  payment  of  which 
the  vendor  is  personally  liable.   Under 
these  circumstances,  there  can  be  no 
doubt  that  the  purchaser  is  entitled 
not  only  to  recover  an  indemnity  upon 
payment  of  the  encumbrance,  but  to 
actual  substitution  in  the  place  of  the 
creditor,  and  to  enforce  all  his  reme- 
dies for  the  debt  against  the  vendor; 
Keirsted  v.  Avery,  4  Paige,  1.     In 
this  case,  however,  the  right  may  be 
thought  to  depend,  upon  the  original 
Tjontract  of  sale  between  the  vendor 
and  the  vendee.     But  it  is  equally 
well  settled,  that  if  the  encumbrance 
bind  other  lands  of  the  vendor,  which 
are  subsequently  conveyed  to  a  second 
purchaser,  the  right  of  the  first  will 
not  be  limited  to  a  recourse  against 
the  vendor  himself,  but  will  extend 
to  enforcing  the  encumbrance  against 
the  land  with  which  he  has  parted. 
This  is  so  held  on  the  obvious  princi- 
ple, that  as  the    right   exists   before 
alienation,   to   hold   that   the  vendor 
could   defeat  it  merely  by  aliening, 
would  be  to  hold  that  the  rights  sub- 
sisting between  the  original  parties  to 
a  transaction  can  be  defeated  by  the 
intervention  of  a  third  person.     In 
Gill  V.  Lyon,  1  Johnson,  Chancery, 
447,  a  mortgagor  sold  part  of  the  pre- 
mises  mortgaged   to  the  defendant, 
and  the  residue  was  subsequently  pur- 
chased by  the  plaintiff,  at  a  sale  under 
a  judgment  obtained  after  tlie  sale  to 
the  defendant.     Under  these  circum- 
stances, it  was  decided,  that  as  the 
mortgagor  could  not  have  claimed  con- 
tribution from    his   vendee,  towards 
paying  his  own  mortgage,   no  such 
claim  could  grow  out  of  the  subse- 


quent purchase,  which  could  not  put 
the  purchaser  in  a  better  position  than 
the  party  whose  title  he  purchased. 
The  doctrine  of  this  case  was  followed 
and  enforced  in  the  subsequent  deci- 
sion of  Clowes  V.  Dickinson,  5  John- 
son, Chancery,  235;  9  Cowen,  403. 
It  appeared  from  the  pleadings  and 
evidence,  that  the  plaintiff  had  pur- 
chased land  from  one  Vanderheyden, 
which   was   subject   to   a   judgment 
against  him,  and  that  Vanderheyden 
had    subsequently    sold    other    land 
bound  by  the  same  judgment  to  the 
defendants.       The    latter    afterwards 
took  an  assignment  of  the  judgment 
from  Vanderheyden,   and   issued   an 
execution  upon  it,  under  which  the 
land  previously  conveyed  to  the  plain- 
tiff was  sold  to  them.     Under  these 
circumstances,  it  was  held   that  the 
sale  to  the   defendants  being  subse- 
quent in  point  of  time,  to  that  by  the 
plaintiff,  was  subject  in  the  first  in- 
stance, to  the  whole  burden   of  the 
judgment,  and  that  the  plaintiff  would 
consequently  have   been    entitled  to 
stay  the  execution  issued  against  his 
land  by  injunction.     But  it  was  also 
held,  that  as  he  had  not  taken  this 
course,  and   as    the    defendants    had 
made  valuable  improvements  on  the 
land,  the  relief  afforded  would  be  limi- 
ted to  a  decree  for  the  payment  of  the 
amount  with  interest,  for  which  the 
land  was  sold    under  the  execution. 
"The  principles  of  equity,"  said  the 
chancellor,  in  the  course  of  his  able 
opinion,  "  are  clearly  laid  down  in  Sir 
William    JFarhert's    case,    (3    Coke, 
11,  b,)  where  it  was  resolved,  that  if 
A.  be  seised  of  three  acres,  and  ac- 
knowledge a  recognizance  or  statute, 
and  enfcoft'  B.  of  one  acre,'  C  of  an- 
other acre,  and  the  third  acre  descends 


ALDRICn     V.     COOPER. 


239 


to  his  heir,  and  if  execution  be  sued 
out  against  the  heir,  he  shall  not  have 
contribution   against  the   purchasers, 
for  the  heir  sits  in  the  seat  of  his  an- 
cestor; and  the  rule  is  the  same,  though 
the  purchaser  take  the  land  without  a 
valuable  consideration,  and  though  the 
heir  be  charged  as  terre-tenant,  (vide 
Harvey  v.    Woodhouse,  1731,  Select 
Cases  in  Ch.  3, 4,  S.  P.)     It  was  also 
held  in  the  same  case,  that  the  land  of 
the  conusor  in  the  recognizance  was 
exclusively  to  be  charged,  when  divers 
persons  have  purchased  any  of  the 
land  subject  to  the  recognizance,  be- 
cause the  purchaser  does  not  stand  in 
the   same    degree    with    the   conusor 
himself;  but  where  there  are  several 
heirs,  or  where  several  persons  join  in 
a  recognizance,  one  heir,  or  one  conu- 
sor, should  not  be  charged  exclusive- 
ly, for  their  relations  and  duties  were 
equal,  and  the  charge  should  be  equal. 
"  This  case  settles  the  question  of 
contribution  as  between  the  vendor 
and  the  purchaser,  or  the  heirs  of  the 
vendor   and    the   purchaser;    and    if 
there  be  several  purchasers  in  succes- 
sion, at  different  times,  I  apprehend 
that  in  that  case,  also,  there  is  no 
equality,  and  no  contribution  as  be- 
tween these  purchasers.    Thus,  for  in- 
stance, if  there  be  a  judgment  against 
a  person  owning  at   the   time  three 
acres  of  land,  and  he  sells  one  acre  to 
A.,  the  two  remaining  acres  are  first 
chargeable  in  equity  with  the  payment 
of  the  judgment  debt,  as  we  have  al- 
ready seen,  whether  the  land  be   in 
the  hands  of  the  debtor  himself  or  of 
his  heirs.     If  he  sells  another  acre  to 
B.,  the  remaining  acre  is  then  charge- 
able in  the  first  instance  with  the  debt, 
as  against  B.,  as  well  as  against  A., 
and  if  it  should   prove  insufficient, 


then  the  acre  sold  to  B.  ought  to  sup- 
ply the  deficiency,  in  preference  to  the 
acre  sold  to  A.,  because,  when  B.  pur- 
chased, he  took  his  lands  chargeable 
with  the  debt  in  the  hands  of  the 
debtor,  in  preference  to  the  land  sold 
to  A.  In  this  respect  we  may  say  of 
him,  as  is  said  of  the  heir,  he  sits  in 
the  seat  of  his  grantor,  and  must  take 
the  land  with  all  its  equitable  burdens; 
it  cannot  be  in  the  power  of  the  debtor, 
by  the  act  of  assigning  or  selling  his 
remaining  land,  to  throw  the  burden 
of  the  judgment,  or  a  rateable  part  of 
it,  back  upon  A.  It  is  to  be  observed, 
that  the  debt,  in  this  case,  is  the  per- 
sonal obligation  of  the  debtor,  and 
that  the  charge  on  the  land  is  only  by 
way  of  security;  the  case  is  not  ana- 
logous to  a  rent  charge,  which  grows 
out  of  the  land  itself,  and  where  every 
purchaser  of  distinct  parcels  of  a  tract 
of  land  charged  with  the  rent,  takes  it 
with  such  a  proportionable  part  of  the 
charge.  The  owners  of  the  land,  in 
that  case,  all  stand  equal,  and  if  the 
whole  rent  be  levied  upon  one,  he 
shall  be  eased  in  equity  by  a  contri- 
bution from  the  rest  of  the  purchasers, 
because  of  the  equality  of  right  be- 
tween them;  (1  Eq.  Cas.  Abr.  tit. 
Contribution,  A.  1.)" 

These  principles  were  subsequently 
affirmed  by  the  court  of  errors,  and 
the  amount  of  compensation  awarded 
augmented ;  9  Cowen,  403  ;  and  they 
have  been  uniformly  followed  through- 
out the  subsequent  cases  in  New  York ; 
James  v.  Eulhard,  1  Paige,  228; 
Governeur  v.  Li/nch,  2  Id.  300; 
Jenkins  v.  Freyer,  4  Id.  47;  Guion 
V.  Knapp,  G  Id.  35 ;  Patty  v.  Pease, 
8  Id.  279;  Skeely.  Spraker,  lb.  182; 
Chapman  Y.  West,  17  N.  York  R.  125; 
although   it  is   held,  that  to-  render 


240 


MAKSHALLING     ASSETS. 


them  effectual  for  the  protection  of 
purchasers  against  an  encumbrance, 
the  encumbrancer  must  have  actual 
or  constructive  notice  of  the  purchase, 
before  he  does  any  act  to  impair  his 
recourse  against  the  land  covered  by 
the  encumbrance ;  and  that  notice 
cannot  be  inferred  from  the  record  of 
a  subsequent  deed  or  mortgage,  or 
from  the  lis  j^cndcns  of  a  suit  brought 
to  enforce  any  of  the  rights  which 
such  a  mortgage  confers;  Blair  v. 
Ward,  2  Stockton,  Chancery,  119. 
Stut/vesant  v.  Hone,  1  Sandford,  Ch. 
419 ;  Stui/vesant  v.  Hall,  2  Barbour, 
Ch.  151.  The  same  view  was  taken  in 
The  Howard  Ins.  Co.  v.  Halscy,  4 
Sandford,  S.  C.  565;  4  Selden,  271; 
although  it  was  said  that  a  mortgagee 
who  releases  part  of  the  mortgaged  pre- 
mises from  the  lien  of  the  mortgacre, 
will  be  presumed  to  have  notice  of 
every  fact  or  conveyance  affecting  the 
other  part,  which  appears  expressly  or 
by  a  necessary  implication  from  the 
recitals  of  the  release. 

It  was  held  in  James  v.  Huhhard, 
that  the  relative  rights  and  liabilities 
of  successive  purchasers  depend,  not 
on  the  dates  of  their  respective  deeds, 
but  on  that  of  the  original  contracts 
of  sale  under  which  those  deeds  were 
executed.  And  it  was  further  held, 
that  a  creditor  is  not  bound  to  decide 
at  his  peril  between  the  equities  of 
successive  purchasers,  and  that  the 
proper  course  is  for  them  to  file  a  bill 
in  equity  for  the  purpose  of  guiding 
the  execution.  It  is,  moreover,  well 
settled  that,  in  order  to  administer 
this  equity,  all  the  parties  whose  in- 
terests are  in  question  should  be 
brought  before  the  court,  and  that  it 
cannot  be  enforced  on  a  bill  filed  by 
a  senior  purchaser  against  a  judgment 


creditor,  without  making  the  subse- 
quent purchasers  parties,  and  thus 
giving  them  an  opportunity  of  being 
heard  if  they  desire  it;  Avery  v.  Pet- 
ten,  7  Johnson,  Ch.  211.  The  sound- 
ness of  this  decision  was  recognized 
in  Fallen  v.  The  Ayricidtural  Bank, 
1  Freeman,  419 ;  8  Smedes  &  Mar- 
shall, 357.  But  it  was  practically 
disregarded  by  a  decision,  that  a  cre- 
ditor might  be  restrained  by  an  in- 
junction, from  levying  on  the  land  of 
a  senior  purchaser,  without  making 
the  junior  purchasers  parties  to  the 
bill,  although  the  effect  must  neces- 
sarily have  been  to  throw  the  whole 
burden  of  the  debt  on  the  land  pur- 
chased by  them. 

The  doctrine  advanced  in  Cloices  v. 
Dickinson,  has  also  been  followed  in 
Pennsylvania,  after  some  fluctuation 
on  the  part  of  the  courts  and  the  pro- 
fession ;  Mevey's  Appeal,  4  Barr,  80 ; 
Paxton  V.  Harrier,  1  Jones,  312.  In 
Nailer  v.  Stanley,  10  S.  &  R.  450,  it 
had  been  decided  that  a  purchaser  of 
part  of  a  tract  of  land  bound  by  a 
judgment,  was  not  liable  for  contribu- 
tion to  a  subsequent  purchaser  of  an- 
other portion  of  the  same  tract,  who 
had  discharged  the  judgment.  But  the 
subsequent  case  of  The  Preshytcrian 
Corporation  v.  Wallace,  3  Ilawle, 
109,  took  the  ground,  (Gibson,  C.  J., 
dissenting,)  that  purchasers  from  a 
mortgagor  were  equally  bound  to  con- 
tribute to  the  payment  of  the  mort- 
gage, without  regard  to  the  order  of 
time  in  which  they  had  purchased. 
Notwithstanding  this  decision,  the 
case  of  Nailer  v.  Stanley  was  recog- 
nized as  law  in  Taylor's  Ex'ors  v. 
Maris,  5  Rawle,  51 ;  and  in  Cowden's 
Estate,  1  Barr,  207,  the  decision  made 
in  Tlie  Presbyterian   Corporation  v. 


ALDRICH     V.     COOPER. 


241 


Wallace,  was  formally  overruled  on 
the  point  in  question,  and  it  was  de- 
cided that  where  lands  subject  to  an 
encumbrance  are  sold  to  diflferent  per- 
sons at  different  times,  those  last  sold 
are  primarily  liable  to  the  payment  of 
the  encumbrance,  which,  although  a 
lien  on  the  whole,  is  chargeable  on 
each  parcel  in  the  inverse  order  of  its 
alienation.  And  it  was  further  held, 
that  this  rule  applies  to  the  case  of 
successive  encumbrances  of  the  whole 
land,  as  well  as  to  that  of  successive 
purchases  of  part,  the  principle  being, 
that  one  who  acquires  an  interest  in 
real  estate,  whether  as  a  purchaser  or 
an  encumbrancer,  is  entitled  to  hold 
his  acquisition  free  from  all  antecedent 
burdens,  and  that  his  right  in  this  re- 
spect cannot  be  affected  by  the  subse- 
quent intervention  of  other  parties,  or 
by  any  thing  short  of  the  superior 
rights  of  prior  purchasers  or  encum- 
brancers. 

The  decisions  in  New  York  are"  also 
followed  in  Maine,  New  Jersey,  Vir- 
ginia, Ohio,  Georgia,  Alabama,  Ten- 
nessee, Mississippi,  and  South  Caro- 
lina; Pallenx.  The  Agricultural  Bank, 
1  Freeman,  419 ;  The  Agricultural 
Bank  Y.  Fallen,  8  Smedes  &  Marshall, 
337  J  Thompson  v.  Murray/,  2  Hill's 
Ch.  204,  213;  Stone^  v.  Schultz,  1 
Id.  465,  500 ;  The  Bank  v.  Howard, 
1  Strobhart's  Equity,  173 ;  Wright  v. 
Atkinson,  3  Sneed,  585 ;  Conrad  v. 
Harrison,  3  Leigh,  532;  The  Bank 
v.  Dundas,  11  Alabama,  661,  668 ; 
Cuinmings  v.  Cummings,  3  Kelly, 
460 ;  Blair  v.  Ward,  2  Stockton,  Ch. 
119;  The  Commercial  Bank  v.  The 
Western  Reserve  Bank,  11  Ohio,  444 ; 
Shannon  v.  Marselis,  Saxton,  413 ; 
Holden  V.  Pike,  24  Maine,  427 ; 
Cushijig  V.  A^er,  25  Id.  383 ;   Shep- 

VOL.  II. — 16 


herd  v.  Adams,  32  Id.  63 ;  and  as  it 
would  seem  in  Massachusetts,  Allen 
V.  Clark,  17  Pick.  47 ;  Chase  v. 
Woodbury,  6  Gushing,  143  ;  although 
in  Parkman  v.  Welch,  19  Pick.  241, 
the  court  seem  to  have  taken  it  for 
granted,  that  the  jiri ma  facie  relation 
between  successive  purchasers,  is  that 
of  equality  of  contribution. 

The  rule  applies  with  the  same 
force  to  successive  mortgages  as  to 
successive  grants  or  purchases ;  Schry- 
ver  v.  Teller,  9  Paige,  173;  The 
New  York  Life  Ins.  Co.  v.  Alilnor,  1 
Barb.  Ch.  353 ;  Messervey  v.  Barelli, 
2  Hill,  Ch.  567 ;  because  a  mort- 
gage of  land,  bound  by  the  lien  of  a 
prior  judgment,  entitles  the  mort- 
oao-ee  to  have  the  whole  interest  of 
the  mortgagor  appropriated  to  the 
mortgage,  save  what  may  be  necessary 
for  the  payment  of  the  judgment ;  and 
the  right  thus  created,  obviously  can- 
not be  divested  by  the  execution  of  a 
subsequent  mortgage ;  Conrad  v.  Har- 
rison, 3  Leigh,  532. 

It  necessarily  follows,  from  this 
course  of  decision,  that  the  buyer  of 
part  of  a  tract,  covered  by  a  mortgage 
or  other  encumbrance,  has  an  interest 
in  having  the  residue  maintained  in  a 
condition  to  meet  and  bear  the  whole 
burden,  and  may  file  a  bill  against  the 
vendor,  and  those  claiming  under  him, 
to  prevent  the  security  to  which  he  is 
entitled,  from  being  impaired  by  the 
commission  of  waste ;  Johnson  v. 
White,  11  Barbour,  194. 

The  foundation  of  the  right  of  a 
prior  purchaser,  to  throw  the  burden 
of  antecedent  encumbrances  on  subse- 
quent purchasers,  is  in  the  equity  sub- 
sisting between  himself  and  the  ven- 
dor, and  when  this  equity  fails,  the 
right  must  fail  with  it.     Thus,  where 


242 


MARSHALLING     ASSETS. 


/ 


one  of  two  lots  of  land  is  bought,  sub- 
ject to  an  express  or  implied  agree- 
ment, that  the  purchaser  shall  pay  the 
whole,  or  a  proportionate  share  of  a 
mortgage  binding  on  both,  he  cannot 
claim  subrogation  against  a  subsequent 
purchaser  of  the  other  lot,  unless  the 
whole  of  a  burden  has  been  thrown 
upon  one,  which  should  have  been 
borne  equally  by  both,  and  then  only 
for  the  excess  of  the  charge  over  the 
obligation ;  Fisher  v.  Clyde,  7  W.  & 
S.  544  J  Carpenter  v.  Koons,  8  Har- 
ris, 222  ;  Skinner  v.  Sfarner,  12  Id. 
123;  Ferris  v.  Cratcford,  2  Denio, 
595  ;  Stevenson  v.  Black,  Saxton, 
338;  HeyerY.  Pruyn,  7  Paige,  465. 
And  where  the  first  vendee  has  given 
a  mortgage  for  the  purchase-money 
which  remains  unpaid,  he  will  be  pri- 
marily liable  for  the  payment  of  any 
anterior  encumbrance  on  the  laud,  to 
the  extent  of  such  mortgage,  for,  as 
to  this,  he  stands  in  a  worse  position 
than  a  subsequent  vendee,  who  has 
paid  for  his  purchase  ;  Allen  y.  Clark, 
17  rick.  47. 

It  necessarily  follows  from  what  has 
been  said,  that  when  a  grant  is  sub- 
ject to  a  mortgage,  either  by  legal 
implication,  or  as  a  result  of  the  lan- 
guage of  the  deed,  the  land  granted 
will  be  primarily  liable  for  the  debt, 
and  must  be  applied  to  its  payment 
in  the  first  instance,  in  exoneration  of 
the  personal  liability  of  the  mortgagor, 
and  of  any  other  real  or  personal  pro- 
perty, which  may  have  been  pledged 
or  conveyed  as  an  additional  or  collate- 
ral security  to  the  mortgage.  Hence, 
instead  of  an  equity  on  the  part  of 
the  purchaser  against  the  grantor,  the 
grantor  and  those  claiming  under  him 
will  be  entitled  to  charge  the  pur- 
— chaser,  or  rather  the  land  purchased, 


with  the  whole  amount  of  the  encum- 
brance, which   will    be   presumed  to 
have  been  deducted  from  the  price, 
and  to  be  in  efi'ect  reserved  or  kept 
back  out  of  the  sale ;  Hansell  v.  Lntz, 
8  Harris,  284 ;  Ferris  v.  Crawford,  2 
Denio,  595 ;  Marsh  v.  Pike,  10  Paige, 
595  ;    Cornell  v.  Prescott,  2  Barbour, 
17.      In    other   words,    the    relation 
which   would   subsist  if  the   vendor 
had  stipulated  that   the  land  should 
be  free  from  encumbrance  is  reversed, 
and  instead  of  the  vendee's  being  en- 
titled to  subrogation  against  the  ven- 
dor, the  vendor  may  claim  subrogation 
against  the  vendee.     The  point  arose 
in  Ferris  v.  Crawford,  where  it  was 
held,  that  a  sale  subject  to  a  mortgage, 
which  was  expressly  or  impliedly  de- 
ducted from  the  price,  far  from  giving 
the  purchaser  a  claim  on  the  vendor, 
or  on  stock,  which  had  been  pledged 
by  him  at  the  time  when  the  mort- 
gage was  executed  as  collateral  secu- 
rity for  the  debt,  rendered  the  land 
primarily  liable,  and  entitled  the  ven- 
dor to  enforce  the  mortgage  for  his 
own  benefit,  on  proof  that  the  debt 
had  been  paid  by  a  sale  of  the  stock. 
Such,  at  least,  is  the  rule  under  ordi- 
nary circumstances,  when  a  convey- 
ance is  made  subject  to  a  mortgage, 
and  with  a  consequent  deduction  of 
the  amount  of  the  mortgage  from  the 
purchase-money.       In    Pennsylvania, 
however,  the  sale  of  land  bound  by  a 
mortgage,  which  extends  to  or  covei*s 
other  land,  under  a  judgment  and  ex- 
ecution, transfers  the  land  to  the  pur- 
chaser in  the  same  condition  as  it  was 
before  the  sale,  that  is  to  say,  charged 
with  so  much  only  of  the  burden  as 
would  fall   to  its  share,  if  tlic  debt 
were  equally  apportioned  among  the 
whole  of  the  mortgaged  premises ;  and 


ALDRICH     V.     COOPER. 


243 


the  rule  wliicli  thus  prevails  in  the 
first  instance,  will  hold  good  with  re- 
gard to  all  subsequent  claimants. 
The  question  arose  in  Fisher  v.  Clyde, 
1  W.  &  S.  544,  between  a  purchaser 
at  a  sherifi"'s  sale  of  part  of  a  tract  of 
land  bound  by  mortgage,  and  certain 
persons  who  were  in  possession  of  the 
residue  under  a  devise  from  the  mort- 
gagor, and  the  court  held  that  both 
parties  stood  in  equali  jure,  and  were 
bound  to  contribute  to  the  payment 
of  the  mortgage  in  proportion  to  the 
value  of  their  respective  interests  in 
the  land.  This  case  was  followed  in 
Carpenter  v.  Koons,  8  Harris,  224, 
abd  the  relation  created  by  a  sherifi''s 
sale  of  different  tracts,  or  of  different 
parts  of  the  same  tract,  bound  by  an 
encumbrance  which  survives  the  sale, 
said  to  be  one  of  equality,  which  puts 
all  the  purchasers  on  the  same  foot- 
ing, and  instead  of  entitling  those 
who  buy  first  to  throw  the  whole 
burden  on  those  who  succeed  them, 
makes  it  the  duty  of  all  to  contribute 
rateably  to  the  discharge  of  the  com- 
mon burden.  See  ante,  vol.  1,  p.  153. 
We  have  seen  that  the  case  of 
Thompson  v.  Murray,  2  Hill,  Ch. 
204,  ante,  establishes  that  the  bur- 
den of  prior  encumbrances  should  be 
thrown  on  a  grantor  with  warranty, 
whether  the  grant  be  a  gift  or  pur- 
chase; and  the  same  rule  is  necessarily 
applicable  to  all  who  claim  under  him 
subsequently  in  the  same  manner, 
and  whose  rights  can  obviously  rise 
no  higher  than  his  own  ;  Cummings 
v.  Cummings,  3  Kelly,  460  ;  although 
we  may  doubt  whether  the  equity 
created  by  a  gift,  ought  to  prevail  over 
the  title  acquired  by  a  subsequent 
purchase.  The  law  was  so  held  in 
Cummings   v.    Cummings,   and   the 


equities  of  successive  donees  with 
warranty,  held  to  stand  as  between 
themselves  on  the  same  footing  with 
those  of  successive  purchasers,  and 
consequently  to  be  inversely  as  the 
dates  of  the  gifts  under  which  their 
respective  claims  originated. 

The  question  whether  the  encum- 
brance is  personally  binding  on  the 
vendor,  may  sometimes  be  material,  in 
determining  whether  it  is  to  be  borne 
by  himself,  or  by  the  vendee,  and 
thus  have  a  bearing  on  controversies 
arising  between  the  latter  and  subse- 
quent purchasers.  In  every  other 
point  of  view  it  must,  however,  be 
immaterial.  Whenever,  as  between 
vendor  and  vendee,  the  former  is  pri- 
marily liable  for  the  payment  of  the 
encumbrance,  the  weight  of  the  obli- 
gation will  descend  under  the  doctrine 
of  Clowes  V.  Dickenson,  upon  all  sub- 
sequent purchasers  of  other  lands 
bound  by  the  encumbrance;  Wikqf 
V.  Davis,  3  Green,  Ch.  224.  Thus  it 
was  held  in  Guion  v.  Knapp,  G  Paige, 
35,  that  where  a  vendee,  who  had  pur- 
chased land  bound  by  a  mortgage,  re- 
sold the  land  in  parcels  at  different 
times,  and  to  different  persons,  the 
duty  of  paying  the  mortgage  devolved 
on  the  purchasers,  in  the  inverse  or- 
der of  the  dates  of  their  purchases. 
In  the  course  of  the  decision  it  was 
said  by, the  Chancellor,  that  "the 
principle  of  charging  different  parcels 
of  the  mortgaged  premises,  which  had 
been  sold  at  different  times  subsequent 
to  the  mortgage,  in  the  inverse  order 
of  their  alienation,  is  not  always  con- 
fined to  the  original  alienations  by  the 
mortgagor,  who  is  personally  liable  for 
the  payment  of  the  debt.  The  prin- 
ciple is  equally  applicable  to  several 
conveyances  at  different  times,  by  a 


244 


MARSHALLING     ASSETS. 


grantee  of  tlie  whole,  or  a  part  of  the 
mortgaged  premises,  -where  he  con- 
veys with  warranty.  Thus,  if  the 
mortgage  is  a  lien  upon  200  acres  of 
land,  and  the  mortgagor  conve3S  one 
hundred  acres  thereof  to  A. ;  the  one 
hundred  acres  which  remains  in  the 
hands  of  the  mortgagor,  is  to  be  first 
charged  with  the  payment  of  the  debt, 
and,  if  that  is  not  sufficient,  the  other 
100  acres  is  next  to  be  resorted  to. 
But,  if  A.  has  subsequently  conveyed 
one  half  of  his  100  acres  to  B.,  with 
warranty,  the  50  acres  remaining  in 
the  hands  of  A.  is,  in  equity,  first 
chargeable  with  the  payment  of  the 
balance  of  the  debt,  which  cannot  be 
raised  by  a  sale  of  the  100  acres  that 
still  belong  to  the  mortgagor  or  his 
subsequent  grantee,  before  resort  can 
be  had  to  the  50  acres  which  A.  has 
conveyed  with  warranty.  And  if  A. 
conveys  his  remaining  50  acres  to  C, 
either  with  or  without  warranty,  that 
portion  of  the  premises  is  still  liable 
for  the  balance  of  the  mortgage  debt, 
and  must  first  be  sold,  before  a  resort 
can  be  had  to  the  50  acres  previously 
conveyed  with  warranty  to  B."  The 
rule  thus  laid  down  was  cited  with 
approbation  in  Cicnimings  v.  Cnm- 
minf/s,  3  Kelly,  4C0,  and  said  to  be 
the  same  in  Georgia  as  in  New  York. 
The  stress  laid  on  these  remarks  on 
the  covenant  of  warranty  in  the  deed 
to  the  purchaser,  merely  had  reference 
to  the  evidence  which  it  afforded,  that 
although  the  mortgage  was  not  for  the 
personal  debt  of  the  vendor,  it  was  to 
be  borne  by  him,  and  not  by  the  ven- 
dee. The  decision  will  consequently 
be  in  point,  whenever  this  is  the  case, 
whether  the  conveyance  be  with  or 
without  warranty.  Thus  there  can  be 
little  doubt,  that  a  mortgage  from  a 


grantee  or  devisee  will  be  entitled  to 
exoneration  from  liens  or  charges,  im- 
posed or  created  by  the  grantor  or 
devisor,  at  the  expense  of  subsequent 
encumbrancers,  irrespectively  of  the 
existence  of  a  covenant  of  general 
warranty,  or  against  encumbrances, 
in  the  mortgage ;  Coicden's  Estate,  1 
Barr,  267.  And  the  rule  would  proba- 
bly be  the  same  in  Pennsylvania,  if  not 
elsewhere,  as  between  successive  pur- 
chasers, because  a  vendor  is  prima 
facie  bound  in  that  state  to  convey 
free  from  encumbrances,  whether  he 
has  or  has  not  covenanted  against 
them;  Wollert  v.  Lucas,  10  Barr, 
73 ;  Eawle  on  Covenants  for  Title, 
707,  2d  edition. 

Notwithstanding  the  weight  of  au- 
thority in  support  of  the  doctrine, 
established  by  Clowes  v.  Diclcenson, 
there  would  seem  to  be  some  grave 
objections  to  its  application  in  prac- 
tice, if  not  to  its  theoretical  sound- 
ness. When  one  of  two  tracts  of 
land,  covered  by  a  mortgage,  is  con- 
veyed to  a  purchaser,  there  can  be  no 
doubt  as  to  his  right  to  throw  the 
whole  burden  on  the  other  tract,  in 
exoneration  of  that  which  he  has 
purchased.  But  this  right  is  obvi- 
ously a  mere  equity,  and  like  all  equi- 
ties, only  binding  as  between  the  par- 
ties, and  on  purchasers  with  notice. 
In  order,  therefore,  to  make  a  subse- 
quent purchaser  of  the  other  tract, 
liable  for  the  whole  mortgage  instead 
of  part,  it  must  be  shown  that  he  knew 
or  ought  to  have  known  of  the  circum- 
stances on  which  the  equity  of  the 
first  purchaser  is  founded,  that  is,  of 
the  conveyance  to  the  latter,  and  of 
the  existence  of  the  mortgage;  or,  in 
other  words,  that  both  were  brought 
to  his  knowledge  at  the  time  of  the 


ALDRICH     V.     COOPER. 


245 


purchase,  by  some  of  the  modes  of  ac- 
tual or  constructive  notice,  which  are 
requisite  to  give  effect  to  equities  as 
against  purchasers  in  general ;  Green 
V.  Ramage,  18  Ohio,  428,  ante. 
In  general,  the  existence,  or  even 
the  record  of  the  conveyance  of 
one  lot  or  parcel  of  land  to  a  pur- 
chaser, will  not  be  notice  to  the 
grantee  of  another,  because,  the  re- 
cording acts  only  apply,  as  between 
successive  conveyances  of  the  same 
land,  and  have  no  application,  when 
the  subject-matter  conveyed  is  diffe- 
rent, although  the  grantor  may  be  the 
same ;  Boggs  v.  Varner,  6  W.  &  S. 
409 ;  Chase  v.  Woodbury,  6  Gushing, 
143.  But  in  Chase  v.  Woodburi/, 
where  two  parcels  of  land,  bound  by 
the  same  mortgage,  were  conveyed  to 
two  different  persons  on  the  same  day, 
one  of  whom  recorded  his  deed,  while 
the  other  did  not;  the  court  held,  a 
subsequent  purchaser  from  the  former, 
entitled  to  throw  the  whole  burden  of 
the  mortgage  upon  the  latter,  be- 
cause the  failure  to  put  the  grant 
under  which  he  claimed,  of  record, 
induced  and  justified  the  belief  that 
his  share  of  the  land  still  remained 
in  the  original  grantor,  and  was  con- 
sequently primarily  liable  for  the 
mortgage.  And  the  objection  that 
as  a  deed  of  one  parcel  of  land  is  not 
notice  to  the  purchaser  of  another, 
even  if  recorded,  he  can  have  no  right 
to  complain  of  a  failure  to  record  it, 
was  said  to  be  inapplicable,  when  both 
tracts  are  subject  to  a  common  en- 
cumbrance, which  renders  it  the  duty 
and  interest  of  a  purchaser  of  either,  to 
learn  what  has  become  of  the  other. 
But  in  Green  v.  Ramage,  18  Ohio, 
428,  it  was  said  to  be  plain  that  this 
argument  only  applies  when  both  par- 


cels of  land  are  bound  by  or  sub- 
jected to  a  common  lien  or  encum- 
brance, and  that  the  purchase  of  one 
of  two  lots  which  have  been  mort- 
gaged separately  for  the  same  debt, 
will  not  entitle  the  purchaser  to  throw 
the  whole  burden  of  the  debt  on  a 
subsequent  vendee  of  the  other,  be- 
cause there  is  nothing  on  the  record 
to  apprise  the  latter  of  the  true  state 
of  the  case,  and  he  is  consequently 
entitled  to  insist  on  his  right  as  it 
appeared  to  be  when  he  bought  it. 
And  the  court  seem  to  have  thought 
that  the  result  would  have  been  the 
same,  had  both  lots  been  embraced  in 
the  same  mortgage,  and  that  the  duty 
of  a  purchaser  is  limited  to  an  inves- 
tigation of  the  title  of  the  land  which 
he  buys,  and  does  not  bind  him  to 
search  the  record  for  conveyances  of 
other  land  not  embraced  in  his  pur- 
chase. And  in  order  to  support  the 
decisions  in  New  York  and  Pennsyl- 
vania, it  must  be  contended  that  the 
mere  circumstance,  that  the  second 
purchaser  has  notice  through  the  re- 
cord, or  otherwise,  that  the  antece- 
dent mortgage  extends  to  other  lands, 
not  embraced  in  his  purchase,  makes 
it  his  duty  to  ascertain  whether  they 
are  still  in  the  hands  of  the  vendor, 
and  thus  amounts  to  constructive  no- 
tice that  they  have  been  conveyed  to 
third  persons;  Cha^^man  v.  West,  17 
New  York  R.  125. 

From  an  unwillingness  to  admit 
this  presumption,  or  from  other 
causes,  it  has  happened  that  the  ex- 
istence of  a  general  rule  of  equity, 
subjecting  purchasers  to  the  charge 
of  antecedent  encumbrances,  in  the 
inverse  order  of  the  dates  of  their 
purchases,  has  been  doubted  in  Eng- 
land, and  denied  in  some  of  the  states 


246 


MARSHALLING    ASSETS. 


of  tliis  country.  In  Story's  Commen- 
taries on  Equity  Jurisprudence,  the 
rule,  as  held  in  New  York,  is  said  to 
be  in  opposition,  both  to  the  earlier 
and  more  recent  p]nglish  decisions. 
Story's  Equity,  sect.  1233.  It  was, 
notwithstanding,  applied  in  Hartlci/ 
V.  Flaherty,  l^Lloyd  &  Goold,  208, 
218,  although  in  Averall  v.  Wade,  2 
Id.  252,  the  question  was  treated  by 
Chancellor  Sugden,  as  still  open  to 
discussion. 

In  ChecseborougJi  v.  Millard,  1 
Johnson,  Ch.  409 ;  and  Stevens  v. 
Cooper,  lb.  425,  the  rule  in  question, 
does  not  seem  to  have  occurred  to  the 
ingenious  and  able  mind  which  sub- 
sequently established  it  in  Cloices  v. 
Dkhenmn.  In  Beverly  v.  Brook,  2 
Leigh,  426,  successive  vendees  were 
held  bound  to  contribute  equally  to 
the  payment  of  antecedent  encum- 
brances, which  had  attached  to  the 
land  in  the  hands  of  the  vendor ;  but 
the  authority  of  this  decision  is  shak- 
en, if  not  overruled,  by  the  subsequent 
case  of  Conrad  v.  Harrison,  3  Leigh, 
522,  where  it  was  decided,  that  how- 
ever the  law  may  stand,  as  between 
absolute  purchasers,  a  second  mort- 
gagee cannot  compel  the  first  to 
contribute  to  the  payment  of  antece- 
dent judgments.  The  rule  in  New 
York  was  adopted  by  the  Supreme 
Court  of  Ohio,  in  The  Commercial 
Bank  of  Lake  Erie  v.  The  Western 
Reserve  Bank,  11  Ohio,  444  ;  but  in 
the  more  recent  case  of  Green  v. 
Ramafje,  18  Ohio,  428,  it  was  said 
not  to  be  applicable,  unless  the  second 
purchaser  has  the  means  of  .making 
himself  acquainted  with  the  prior 
equity  of  the  first.  And  it  was  con- 
sequently decided,  that  where  two  lots 
were  separately   mortgaged,   for   the 


same  debt,  and  subsequently  sold  to 
difi'erent  persons,  the  first  purchaser 
was  not  entitled  to  throw  the  burden 
of  the  debt  on  the  second,  there  being 
nothing  to  show  the  latter  that  the  ap- 
parent equity  between  himself  and  the 
vendor,  was  subject  to  the  prior  equi- 
ty of  the  former. 

The  difficulties  with  which  the  doc- 
trine that  the  relative  rights  and  obli- 
gations of  successive  purchasers,  are 
prima  facie  dependent  upon  the  dates 
of  their  purchases,  is  thus  embarras- 
sed in  practice,  and  some  doubts  as  to 
its  theoretical  soundness,  have  led  the 
Court  of  Appeals  of  Kentucky  to  re- 
ject it  altogether,  and  to  hold  that 
encumbrances  which  attached  to  the 
land  in  the  hands  of  the  vendor,  must 
be  apportioned  equally  among  all  who 
claim  under  him  by  purchase,  in  the 
ratio  of  the  value  of  their  respective 
interests  at  the  time  of  the  purchase; 
Dickey  v.  Thomp)Son,  8  B.  Monroe, 
312.  In  deciding  this  case  the  court 
held  the  following  language,  which  is 
cited  at  length,  as  presenting  the  op- 
posite view  of  this  subject,  to  that 
taken  in  Clowes  v.  Dickenson. 

''  Upon  a  reconsideration  of  this 
case,  and  an  examination  of  such  of 
the  additional  authorities  referred  to 
on  the  last  argument,  as  are  within 
our  reach,  we  are  brought  to  the  con- 
clusion, that  however  we  might  de- 
cide the  question,  if  it  were  now  res 
nova  in  this  court,  or  if  it  were  one 
of  theory  merely,  the  principle,  that 
among  purchasers  of  difi'erent  portions 
of  the  mortgaged  estate,  the  common 
burthen  should  be  borne  rateably,  has 
been  too  often  acted  upon  and  an- 
nounced by  this  court,  to  be  now  aban- 
doned. In  the  case  of  ITuf/hes  v. 
Greaves,  (1  Littell,)  this  principle  is 


ALDRICH     V.     COOPER. 


247 


clearly  stated  as  applicable  to  the  case, 
pages  319,  320,  but  without  refei-ence 
to  authority.  In  the  case  of  Morri- 
son V.  Beckwith,  (4  Monroe,  76,)  it  is 
expressly  stated  as  a  well  known  prin- 
ciple by  which  the  case  is  to  be  go- 
verned in  the  further  proceedings  di- 
rected by  the  mandate,  that  the  pur- 
chasers of  different  parcels  of  the  mort- 
gaged estate,  should  contribute  to  the 
removal  of  the  burthen  rateably,  after 
first  exhausting  the  residuum,  if  any, 
remaining  in  the  hands  of  the  mort- 
gagor himself.  The  recognition  of  this 
equity  against  the  mortgagor,  with- 
out giving  to  it  any  effect  as  between 
the  purchasers  from  him,  is  a  negation 
of  such  effect;  and  the  failure  in  lay- 
ing down  the  principle  to  distinguish 
between  prior  and  subsequent  purchas- 
ers from  him,  when  the  case  itself  of 
different  sales  by  the  mortgagor,  car- 
ries with  it  the  idea  of  sales  at  differ- 
ent times,  and  when  the  court  in  mak- 
ing the  supposition  that  the  whole  es- 
tate may  have  been  sold  by  the  mort- 
gagor, evidently  supposes  a  sale  of  one 
part  after  another,  is  a  denial  of  all 
effect  to  the  fact  of  priority  or  suc- 
cession of  the  sales,  in  the  applica- 
tion of  the  principle,  which  in  this 
last  case  is  stated  with  a  reference  to 
the  case  of  Stevens  y.  Cooper,  (1  John- 
son, Ch.  Eep.  430.)  In  the  case  of 
Posfon  v.  Eubank,  (3  J.  J.  Marshall, 
45,)  the  same  principle  is  expressly 
announced  with  a  reference  to  the  case 
of  Stevens  v.  Cooper,  and  Morrison  v. 
Beckwith.  And  this  annunciation, 
even  if  unnecessary  for  the  decision  of 
the  case  then  before  the  court,  was  a 
recognition  of  the  principle  and  of  its 
authority  as  a  rule  of  equity.  And 
in  Burk  v.  Chrisman,  3  B.  IMonroe, 
50,  in  a  case  directly  involving  the 


rule  of  contribution  among  purchas- 
ers of  the  encumbered  estate,  this 
court  again  re-asserts  the  same  princi- 
ple of  rateable  contribution  in  propor- 
tion to  the  values  of  the  several  par- 
cels, and  approves  of  its  actual  appli- 
cation as  made  by  the  inferior  court. 

"  It  is  true,  the  question  was  not 
discussed  in  any  of  the  opinions  re- 
ferred to  in  this  court,  and  so  far  as 
authority  is  referred  to,  it  seems  to 
have  rested  upon  the  case  of  Stevens 
V.  Coojier,  which  has  either  been  dif- 
ferently understood  or  disregarded  by 
the  Chancery  Courts  of  New  York, 
in  its  modern  decisions.  But  even  if 
the  principle  as  announced  in  Stevens 
V.  Cooper,  and  as  acted  on  without 
variation  by  this  court,  were  wrong  in 
theory,  it  has,  by  repeated  recogni- 
tion and  announcement  from  this 
court,  acquired  the  character  and 
weight  of  a  rule  of  property.  And 
being  received  and  understood  as  such 
by  the  community,  a  different  rule, 
however  just  the  theory,  could  not 
now  be  adopted  with  reference  to  ac- 
tually existing  cases,  without  doing 
actual  practical  injustice.  But  the 
opinion  of  Chancellor  Kent,  in  Ste- 
vens V.  Cooper,  the  opinions  of 
this  court,  first  without  reference  to 
that  case,  and  afterwards  in  recogni- 
tion of  its  authority,  and  the  opinion 
of  Judge  Story  in  disapprobation  of 
the  more  modern  cases  in  New  York, 
and  elsewhere,  going  upon  the  prin- 
ciple that  the  different  parcels  of  the 
encumbered  estate  are  to  be  charged 
in  the  inverse  order  of  the  several 
transfers  of  them,  (2  Story,  Equity, 
Jur.,  ed.  1S4G,  pages  6(30,  661, 
§  1233,)  would  be  entitled  to  great 
weight  and  to  the  gravest  considera- 
tion, even  if  the  question  were  now 


248 


MARSHALLING     ASSETS. 


to  be  settled  upon  the  principles  ori- 
ginally applicable  to  it. 

'*  We  are  of  opinion,  however,  that 
the  question  should  be  considered  as 
no  longer  an  open  one  in  this  court. 
And,  therefore,  without  going  into 
any  further  discussion,  either  of  the 
principles  involved  or  of  the  authori- 
ties bearing  upon  it,  (a  reference  to 
which  will  be  found  in  notes  1  and  3, 
Story's  Equity,  page  601,)  we  ad- 
here to  and  adopt  the  former  opinion 
of  this  court  as  delivered  by  the  late 
Chief  Justice,  to  which  we  only  add, 
that  in  estimating  the  value  of  the 
several  parcels  of  real  estate  at  the 
time  of  foreclosure,  the  enhancement 
produced  by  improvements  placed 
thereon  in  good  faith,  by  the  purcha- 
ser from  the  mortgagor,  should  not  be 
included." 

As  the  question  between  successive 
purchasers  of  lands,  subject  to  a  com- 
mon encumbrance,  is  one  of  pure  equi- 
ty, its  determination  is  necessarily  de- 
pendent upon  particular  circumstan- 
ces, as  well  as  upon  general  rules. 
Thus,  it  has  been  seen  that  where  a 
purchaser  takes  a  conveyance  of  one 
of  two  lots  covered  by  a  mortgage,  he 
has  a  irrima  facie  right  to  require 
that  it  shall  be  paid  out  of  the  other 
lot.  And  it  is  a  question  of  some 
nicety  to  determine  whether  this  right, 
which  is  absolute  as  against  the 
vendor,  can  be  defeated  by  an  unre- 
corded conveyance  to  a  prior  purcha- 
ser. It  is  well  settled  that,  as  be- 
tween equal  equities,  the  first  must 
prevail.  And  the  equity  of  the  first 
purchaser  will,  therefore,  be  entitled 
to  a  preference,  even  under  these  cir- 
cumstances, unless  it  is  postponed  by 
the  failure  to  record  the  title  pur- 
chased.    The  record inir  acts  arc  ob- 


viously designed  to  aflford  purchasers 
the  means  of  becoming  acquainted 
with  prior  transactions,  relating  to 
or  affecting  the  title  of  that  which 
they  are  about  to  buy ',  and  their 
operation  is  consequently  restricted, 
under  ordinary  circumstances,  to  those 
who  make  successive  purchases  of  the 
same  land,  and  are  thus  liable  to  be 
prejudiced  or  affected  by  each  other's 
acts  and  contracts.  Hence  the  buyer 
of  one  lot  or  tract  is  not  bound,  in 
general,  to  place  the  conveyance  on 
record  for  the  guidance  of  those  who 
may  subsequently  buy  another,  al- 
though forming  part  of  the  same  es- 
tate or  farm,  nor  are  they  bound  to 
take  notice  of  the  conveyance  if  unre- 
corded, or  to  carry  any  search  which 
they  may  make  for  deeds  or  mortga- 
ges, further  than  the  limits  of  the 
very  land  they  are  about  to  purchase. 
When,  however,  two  or  more  lots  or 
tracts  subject  to  a  common  encum- 
brance, are  sold  at  different  periods 
to  different  persons,  this  reasoning 
ceases  to  be  applicable,  because  the 
sale  of  each  lot  necessarily  has  an  in- 
fluence on  the  value  of  the  others, 
and  should  consequently  be  recorded 
for  the  information  of  those  by  whom 
they  may  subsequently  be  purchased. 
Hence,  it  has  been  held,  and  would 
seem  well  settled,  that  the  failure  of  a 
purchaser  to  place  his  deed  on  re- 
cord, will  not  only  deprive  him  of  the 
right  to  require  that  mortgages  or 
other  encumbrances,  should  be  appor- 
tioned among,  or  thrown  on  subse- 
quent purchasers,  but  will  entitle  them 
to  claim  that  priority  which  would 
have  belonged  to  him,  had  proper 
means  been  taken  to  apprise  them  of  its 
existence;  Chnsey.  Woodhir?/, 6 Cnsh- 
ing,  143.  And  there  can,  consequently, 


ALDRICH     V.      COOPER. 


249 


be  little  doubt,  that  a  purchaser  who 
buys  part  of  a  tract  of  land,  covered 
by  a  mortgage,  with  an  express  or  im- 
plied understanding  that  it  shall  be 
borne  by,  or  paid  out  of  the  residue 
of  the  tract,  will  be  entitled  to  en- 
force the  execution  of  his  bargain, 
not  only  against  the  vendor,  but 
against  prior  grantees,  who  have  ne- 
glected to  comply  with  the  provisions 
of  the  recording  acts,  and  thus  fur- 
nish him  with  the  means  of  learning 
that  their  rights  were  inconsistent 
with  those  which  he  intended  to  se- 
cure by  his  contract.  The  law  was 
so  held  in  Chase  v.  Woodbury,  6 
Gushing,  143,  and  the  failure  of  the 
purchaser  of  one  of  two  parcels  of 
laud,  bound  by  the  lien  of  a  mort- 
gage common  to  both,  to  put  the  deed 
of  conveyance  on  record,  held  to  invert 
the  relations  which  would  otherwise 
have  existed  between  him  and  a  subse- 
quent grantee  of  the  other  parcel,  and 
entitle  the  latter  to  exoneration,  at  the 
expense  of  the  laud  conveyed  by  the 
prior  grant.  A  similar  view  was 
taken  in  The  Life  Ins.  Co.  v.  Cutler, 
3  Sandford,  Chancery,  176 ;  and  a  pur- 
chaser who  had  bought  a  part  of  a 
tract  of  land  encumbered  by  a  mort- 
gage, with  an  agreement  that  the  mort- 
gage should  be  apportioned  between 
the  land  sold  to  him,  and  that  retain- 
ed by  the  vendor,  said  to  be  entitled 
to  contribution  from  the  holder  of  ai 
unrecorded  equity,  whose  claim  was 
prior,  both  to  the  original  purchase 
by  the  vendor  and  the  mortgage.  In 
this  case  the  right  of  the  purchaser 
was  restrained,  rather  than  supported 
by  the  agreement  for  the  apportion- 
ment of  the  mortgage,  and  would  have 
extended  to  complete  exoneration,  and 
and   not  merely  to  contribution,  had 


he  bought  on  the  faith  of  the  title, 
as  shown  of  record,  with  the  expec- 
tation that  the  mortgage  would  have 
been  primarily  chargeable  on  the  re- 
sidue of  the  land  in  the  hands  of  the 
vendor,  and  without  any  special  agree- 
ment. It  would,  however,  seem  plain, 
and  has  been  decided,  that  the  want 
of  a  record  may  be  supplied  in  this, 
as  in  other  cases,  by  actual  or  con- 
structive notice  ;  and  in  Chapman  v. 
^Yest,  17  New  York  R.  125,  the  lis 
pendens  of  a  bill  for  the  specific  per- 
formance of  a  contract  for  the  sale  of 
part  of  a  tract  of  land,  covered  by  a 
mortgage,  was  said  to  be  notice  to 
subsequent  grantees  of  the  residue,  of 
the  equity  sought  to  be  enforced  by 
the  bill,  and  the  right  of  the  com- 
plainant to  require  that  the  whole  bur- 
den of  the  mortgage  should  be  thrown 
upon  that  portion  of  the  tract  which 
he  had  not  bought,  in  exoneration  of 
that  which  formed  the  subject  of  his 
purchase. 

MarshaJUng  assets  in  favor  of  Le- 
gatees and  Devisees. — Another  class 
of  cases  in  which  the  right  to  marshal 
assets,  depends  on  the  relative  posi- 
tion held  by  the  parties  as  claiming 
through  a  common  source  of  title,  and 
not  on  hostile  or  antagonistic  demands 
against  the  assets  marshalled,  arises 
in  the  adjustment  of  the  claims  of  per- 
sons entitled  by  gift  or  descent,  to  a 
greater  or  less  measure  of  interest  in 

o 

an  estate,  which  has  been  wholly  or 
partially  devised  or  bequeathed  by 
will,  where  the  debts  of  the  testator 
render  it  impossible  that  all  the  claim- 
ants should  be  satisfied  in  full.  Un- 
der these  circumstances,  it  is  obvi- 
ously inequitable  to  permit  the  credi- 
tors to  determine  the  question  by  a 
mere  arbitrary  discretion,  and  it  is, 


250 


MARSHALLING     ASSETS. 


therefore^  necessary  to  marshal  the 
assets  in  order  to  adjust  the  burden 
of  payment,  in  accordance  with  the 
actual  rights  of  the  respective  parties 
in  interest. 

Upon  the  death  of  a  debtor,  his 
personal  estate  becomes  the  primary 
fund  for  the  payment  of  his  debts, 
even  when  they  are  a  lien  upon,  and 
payable  out  of  the  realty ;  Kehey  v. 
Western,  2  Comstock,  500  ;  Gibson  v. 
3/'  Cormick,  10  Gill  &  Johnson,  65 ; 
Hoyex.  Breicer,  3  Gill  &  J.  153; 
TTyse  V.  Smith,  4  Id.  296  ;  Rogers  v. 
Rogers,  1  Paige,  188 ;  Holmaii's  Ap- 
peal,  12  Harris,  174;  ante,  vol.  1,  638, 
note  to  Ancaster  v.  Mai/er.  And  this 
holds  good,  even  in  those  cases  where 
the  land  has  been  specifically  pledged 
by  the  debtor  in  his  lifetime  for  the 
debt ;  Stevens  v.  Gregg,  10  Gill  &  J. 
143.  Thus  the  heir  has  an  undoubt- 
ed right  to  call  on  the  executor,  to 
discharge  a  mortgage  out  of  the  per- 
sonal assets,  in  so  far  as  they  have  not 
been  specifically  appropriated  to  other 
purposes  by  the  testator  ;  Dandridgc 
V.  Mingc,  4  Randolph,  397.  But  the 
presumption  that  debts  chargeable 
both  on  real  and  personal  estate,  are 
to  be  paid  out  of  personalty,  is  a  mere 
presumption,  and  not  a  necessary 
or  inflexible  legal  principle.  It  is 
necessarily  subject  to  the  control 
which  the  testator  may  exert  over  all 
his  property.  Thus  he  may,  by  an 
express  testamentary  direction,  throw 
the  whole  burden  of  payment  on  the 
land,  and  exonerate  the  personal  as- 
sets. And  he  may  do  the  same  thing 
impliedly,  by  bequeathing  the  assets 
and  charging  the  land,  without  ex- 
pressly confining'  the  liability  to  the 
latter.      The  only  question   in   such 


cases  is,  whether  the  testator  intend- 
ed any  part  of  the  property  given  by 
his  will  to  pass  to  the  donees,  free 
from  the  burden  of  his  debts,  for  if 
such  an  intention  is  expressed,  or  can 
be  inferred,  the  assets  will  be  mar- 
shalled in  order  to  carry  it  into  ef- 
fect ;  Ruston's  Executors  v.  Ruston,  2 
Dallas,  243.  It  has  long  been  a  rule 
of  English  equity,  that  whenever  debts 
are  chargeable  on  land,  the  mere  fact 
of  bequeathing  the  personalty,  either 
pecuniarily  or  specifically,  is  sufficient 
to  exonerate  the  legatees,  and  throw 
the  burden  on  the  real  assets  in  the 
hands  of  the  heir.  This  rule  is  found- 
ed on  the  natural  inference,  that  the 
purpose  of  the  testator  in  giving,  is 
that  his  gift  should  not  be  defeated. 
Giving  the  personalty  to  the  legatees, 
is  substantially  a  declaration  that  it 
shall  not  be  taken  for  the  payment  of 
debts,  and  therefore  exonerates  it  from 
liability  for  all  debts  which  are  charge- 
able on  the  land.  When,  however, 
the  land  itself  is  devised,  the  infer- 
ence in  favor  of  the  devisee  is  as  strong 
as  it  can  be  in  favor  of  legatees,  and 
as  all  devises  are  specific,  necessarily 
stronger,  unless  the  legacies  are  also 
given  specifically.  Hence,,  while  the 
burden  of  all  debts  charged,  or  which 
constitute  a  lien  upon  the  land,  is 
thrown  in  England  upon  the  heirs,  in 
exoneration  of  the  legatees,  devisees 
have  a  preference  over  pecuniary  lega- 
tees, while  devises  and  specific  or  de- 
monstrative bequests  contribute  equ- 
ally; Shreve  v.  Shreve,  2  Stockton, 
Ch.  385;  Chase  v.  Loclcerman,  11  Gill 
&  Johnson,  186,  204;  naUoiceU's 
Aiqieal,  11  Harris,  223;  ante,  211. 
Sucli  at  least,  was  the  rule  established 
iu  England,  where,  until  recently,  in 


ALDRICH     V.     COOPER. 


251 


the  absence  of  an  express  or  implied 
charge,  only  certain  limited  classes  of 
debts  were  payable  out  of  land.  In 
this  country,  however,  where  the  lands 
of  a  debtor  are  liable  for  the  payment 
of  all  his  debts,  there  has  been  some 
doubt  whether  specific  legatees  are 
entitled  to  contribution  from  devi- 
sees, and  when  heirs  should  be  post- 
poned to  general  or  pecuniary  lega- 
tees. In  Hayes  v.  Jachson,  G  Mass. 
149,  the  general  rule  of  equity  in 
marshalling  assets  was  held  to  be, 
"1.  The  personal  estate,  excepting 
specific  bequests,  or  such  of  it  as  is 
exempted  from  the  payment  of  debts. 
2.  The  real  estate  which  is  appi'o- 
priated  in  the  will  as  a  fund  for  the 
payment.  3.  The  descended  estate, 
whether  the  testator  was  seised  of  it 
when  the  will  was  made,  or  it  was 
afterwards  acquii'ed.  4.  The  rents 
and  profits  of  it,  received  by  the  heir 
after  the  testator's  death  ;  and  5.  The 
lands  specifically  devised,  although 
they  may  be  generally  charged  with 
the  payment  of  the  debts,  but  not  spe- 
cially appropriated  for  that  purpose. 
This  rule  will  be  executed  by  a  de- 
cree in  chancery,  according  to  the 
rights  of  the  parties  respectively  in- 
terested." 

Here  it  will  be  observed,  that  al- 
though a  preference  is  given  to  specific 
bequests  over  real  assets  taken  by  de- 
scent, it  is  not  extended  to  pecuniary 
legacies  generally.  But  in  the  recent 
case  of  Hoover  v.  Hoover,  5  Barr,  351, 
general  pecuniary  legatees  were  held 
to  be  entitled  to  exoneration  at  the 
expense  of  the  heir.  The  order  of 
application  was  said  to  be:  ''1.  The 
general  personal  estate  not  expressly, 
or  by  implication,  exempted.  2.  Lands 
expressly  devised  to  pay  debts.  3.  Es- 


tates descended  to  the  heir.  4.  Devised 
land,  charged  with  the  payment  of 
debts  generally,  whether  devised  in 
terms  general  or  specific,  (every  devise 
of  land  being  in  its  nature  specific.) 
5.  General  pecuniary  legacies,  j^'^'o 
rata.  6.  Specific  legacies,  pro  raifa.  7. 
Real  estate  devised,  whether  in  terms 
general  or  specific."  The  rule  thus 
laid  down,  is  correct  in  all  particulars 
except  in  postponing  specific  legatees 
of  personalty  to  lands  specifically  de- 
vised ;  it  being  now  conceded  in  many 
of  the  states  of  this  country,  and,  as 
it  would  seem,  in  England,  that  spe- 
cific and  demonstrative  legacies  stand 
on  the  same  footing  as  specific  devises, 
and  may  claim  contribution  from  them 
for  all  the  debts  which  are  in  their 
own  nature  a  charge  on  the  land,  or 
which  have  been  made  so  by  the  tes- 
tator 5  Shreve  v.  Shreve,  2  Stockton, 
Gh.  385;  Gaw  v.  Huffman,  12  Grattan, 
628;  HallowelVs  Estate,  11  Harris, 
223;  The  Commonwealth  v.  Shelly, 
13  S.  &  R.  343  ;  Barklay's  Estate,  10 
Barr,  387  ;  Cryder's  Ajyj^eal,  1  Jones, 
72. 

It  is  well  settled  in  this  country, 
that  whenever  an  intention  to  exempt 
any  portion  of  the  property  devised  or 
bequeathed,  from  the  burden  of  debts, 
can  be  gathered  from  the  will,  it  will 
be  carried  into  efi'ect  to  the  farthest 
extent,  consistent  with  the  paramount 
claims  of  creditors.  But  it  has  in 
general  been  held,  that  the  presump- 
tion in  favor  of  applying  the  per- 
sonal property  for  that  purpose,  in 
the  first  instance,  is  too  strong  to  be 
rebutted  by  a  general -or  residuary 
bequest,  because  the  bequest  will 
be  regarded  as  subject  to  the  condi- 
tion, that  a  sufficient  amount  of  the 
personal  estate  shall  remain  to  make 


252 


MARSHALLING     ASSETS. 


it  good  after  the  payment  of  debts, 
and    without   calling    on    the    realty. 
xVnd  so  far  as  this  presumption  is  one 
of    fact,   founded   on    the   inference 
which  prevails  in  the  minds  of  most 
men,  that  their  real  estate  will  not  be 
forced  to  a  sale  for  the  purpose  of  pay- 
ing their  debts,  so  long  as  there  is  a 
sufficient  fund  in  the  hands  of  their 
executors  for  that  purpose,   it  would 
seem  more  consistent  with  equity,  and 
less  likely  to  defeat  the  object  of  tes- 
tators, than  one  of  an  opposite  char- 
acter; WaUcer's  Estate,  o  Kawle,  229. 
Whether  a  general  bequest  of  the 
whole  of  the  personal  property,  or  of 
the  whole  of  any  particular  portion  of 
it,  will  come  within  the  benefit  of  this 
rule,  and  be  exempted  from  the  bur- 
den  of  debts  at  the  expense  of  the 
land,  will  depend  on  whether  the  tes- 
tator  has  sufficiently  manifested  his 
intention  to   give  the  very  property 
embraced  by  the  terms  of  the  bequest, 
to  rebut  the  presumption  which  will 
otherwise  arise,  that  he  meant  his  es- 
tate to  be  administered  in  due  course 
of  law,  and  that  the  legatees  should 
only  take  what  may  remain  after  the 
demands  of  his  creditors  were  satisfied. 
A  bequest  of  the  whole  of  a  particular 
kind  of  property,  or  of  the  residue, 
after  prior  specific  gifts,  will  be  viewed 
as  specific,  and  entitle  the  legatee  to 
exoneration  at  the  expense  of  the  heir; 
Li'/hf/oot  v.   Lightfoot,  27  Alabama, 
351 ;  Everett  v.  Lane,  2  Iredell,  Eq. 
548 ;  and  the  same  result  will,  as  it 
seems,  follow  from  a  bequest  of  "  all 
my  personal  estate  whatever,"  or  of 
''  all  the  estate  and  effects  of  any  kind 
and  denomination  which  I  shall  hap- 
pen to  be  possessed  of,  or  in  any  way 
entitled  to,  at  my  death,"  preceded 
by  the  enumeration  of  particular  items 


as  part  of  the  gift,  thus  giving  rise  to 
the  inference  that  the  testator  resorted 
to  general  words  for  the  sake  of  brevi- 
ty, and  would  otherwise  have  enu- 
merated the  whole;  Boothy.  Blundell, 
1  Merrivale,  228 ;  Blount  v.  Illj^kins,  7 
Simons,  43;  ante,  vol.  1,  p.  62G.  In  like 
manner,  a  specific  bequest  of  a  parti- 
cular kind  of  property,  may  render  a 
subsequent  gift  of  the  residue  of  the 
personalty  specific,  though  in  terms 
general  or  residuary ;  Bethune  v.  Ken- 
nedy, 1  Mylne  &  Craig,  114  ;  and  thus 
exempt  it  from  liability  for  debts  until 
the  land  is  exhausted ;  Warlet/  v.  War- 
let/,  1  Bailey,  Eq.  397.  And  the 
courts  of  New  York  go  still  further  in 
the  same  direction,  by  holding  that  a 
gift  of  the  whole  of  the  testator's  per- 
sonal property,  manifests  an  intention 
to  give  all  that  he  may  have  when  he 
dies,  and  not  merely  the  residue  after 
the  payment  of  debts,  and  that  the 
debts  must,  consequently,  be  thrown 
on  the  land ;  Hoes  v.  Van  Iloesen,  1 
Barb.  Ch.  380;  1  Comstock,  120; 
ante,  vol.  1,  p.  641. 

In  Walker's  Estate,  3  Rawle,  229, 
however,  the  personalty  was  held  not 
to  be  exempted  by  a  bequest  of  the 
whole,  although  preceded  by  an  enu- 
meration of  many  of  the  items  of 
which  it  consisted.  The  testator  in 
that  case,  gave  his  wife,  Elizabeth 
Walker,  certain  lands,  and  ''all  his 
household  goods  and  furniture,  moneys, 
bonds,  mortgages,  outstanding  debts, 
due  and  owing  to  him,  and  all  other 
personal  estate  of  what  nature  or  kind 
soever."  He  then  made  various  other 
specific  devises,  and  gave  the  residue 
of  his  real  estate  to  his  son  in  fee,  and 
the  question  was  whether  his  debts 
should  be  paid  out  of  the  personal  pro- 
perty thus  bequeathed,  or  out  of  after- 


ALDRICH     V.     COOPER. 


253 


acquired  real  estate,  whicli  had  de- 
scended to  the  heirs.  It  was  held  by 
the  court,  that  the  personal  estate  was 
the  primary  fund  for  the  payment  of 
debts,  that  in  order  to  throw  the  bur- 
den of  payment  on  the  real  estate, 
there  must  be  a  clear  intention  to  that 
effect  manifested  by  the  testator, 
which  could  not  be  found  in  the  will 
under  consideration.  In  order  to  ex- 
onerate the  personalty,  said  Rogers,  J., 
"  the  will  must  contain  express  words 
for  that  purpose,  a  clear,  manifest  in- 
tention, a  plain  declaration,  or  a  ne- 
cessary inference,  tantamount  to  ex- 
press words.  The  question,  in  each 
particular  case  of  exemption,  resolves 
itself  into  this :  Does  there  appear 
from  the  whole  testamentary  disposi- 
tion, taken  together,  an  intention  on 
the  part  of  the  testator,  so  expressed, 
as  to  convince  a  judicial  mind  that  it 
was  meant  not  merely  to  charge  the 
real  estate,  but  so  to  charge  it,  as  to 
exempt  the  personal.  For  it  is  not 
by  an  intention  to  charge  the  real,  but 
by  an  intention  to  discharge  the  per- 
sonal estate,  that  the  question  is  to  be 
decided.  There  is  nothing  in  the  will 
of  the  testator  which  clearly  manifests 
an  intention  to  charge  his  real  estate 
with  the  payment  of  his  debts,  nor 
would  that  be  necessary,  as  between 
the  legatee  and  the  heirs  of  the  land 
descended,  provided  it  was  manifest 
he  intended  to  exempt  his  personal 
estate ;  and  this  is  the  great  difficulty 
with  which  the  legatee  has  to  con- 
tend. And  this  intention  we  are  re- 
quired to  infer,  from  something  which 
has  occurred  since  the  date  of  the  will. 
The  testator  disposed  of  all  his  pro- 
perty, real  and  personal,  and  as  be- 
tween the  devisees  in  the  will,  it  is 
not  to  be  questioned,  that  the  personal 


estate  would  be  liable  to  the  debts. 
It  would  be  a  singular  construction, 
to  infer  an  intention  to  charge  lands 
with  the  payment  of  debts,  which  the 
testator  acquired  after  making  his 
will ;  and  the  case  of  Hays  v.  Jackson, 
6  Mass.  R.  149,  decides  that  a  testa- 
tor cannot,  in  his  will,  charge  after- 
purchased  lands  any  more  than  he  can 
devise  them.  The  case  which  bears 
the  strongest  analogy  to  the  present, 
is  the  one  just  cited.  The  rule,  as 
laid  down  by  Chief  Justice  Parsons, 
is  applicable  here.  The  case  was  this : 
The  testator  ordered  his  debts  to  be 
paid ;  made  a  specific  devise  of  certain 
lands  to  his  sister,  and  devised  all  the 
residue  of  which  he  should  die  seised 
to  a  residuary  legatee.  He  died  seised 
of  lands  purchased  after  the  making 
of  the  will,  which,  of  consequence, 
did  not  pass.  The  executors  applied 
for  license  to  sell  real  estate  for  the 
payment  of  debts.  The  court  directed 
them,  first  to  sell  the  devised  lands 
not  included  in  the  specific  devise, 
and  next,  the  lands  which  descended 
to  the  heirs.  The  Chief  Justice  says, 
'  Jackson  first  provides  that  his  debts 
and  funeral  charges  be  paid;  he  next 
bequeathes  legacies  to  his  nephews  and 
nieces,  and  makes  a  specific  devise  to 
his  sister  Susanna  Gray.  Then  he 
gives  to  Mrs.  Swan,  in  fee,  all  the  re- 
maining part  of  his  estate,  real  and 
personal ;  the  just  construction  of 
which  is,  when  my  debts  and  funeral 
charges,  and  the  legacies  are  paid,  and 
the  specific  devise  to  my  sister  is  de- 
ducted, then  what  remains,  whether 
real  or  personal,  I  devise,  in  fee,  to 
Mrs.  Swan.'  In  one  respect,  this  is 
a  stronger  case  than  the  present,  for 
here  the  court  ordered  the  real,  as 
well  as  the  personal  estate,  devised  to 


254 


MARSHALLING     ASSETS. 


Mrs.  Swan,  to  be  sold,  before  the  de- 
sceuded  lands.  A  distinction  has  been 
attempted  between  the  cases,  and  it 
is  true,  that  they  are  not  in  every 
feature  exactly  alike,  which,  indeed, 
is  seldom,  if  ever,  the  case  in  prece- 
dents on  the  construction  of  wills.  It 
is  objected,  that  here  there  is  no  direc- 
tion to  pay  debts,  and  that  this  is  the 
case  of  a  primary,  and  not  a  residuary 
devise.  To  this  I  answer,  that  every 
testator  is  presumed  to  know  the  law 
of  the  country  in  which  he  lives,  and 
to  make  his  will  in  reference  to  it. 
The  estate  of  the  testator  is  equally 
bound,  without  as  with  such  a  direc- 
tion, and  in  the  order  that  has  been 
indicated.  Such  a  clause  in  the  will, 
although  usual,  is  by  no  means  neces- 
sary in  Pennsylvania.  The  personal 
fund  is  the  first  in  order  for  the  pay- 
ment of  debts,  whether  mentioned  in 
the  will  or  not,  and  this  is  not  doubted, 
as  between  the  devisee  of  the  real  es- 
tate and  the  legatee,  and  how  it  can 
make  any  difference  as  regards  the 
heirs  of  the  descended  lands,  I  am  at 
a  loss  to  discover.  It  is  hardly  neces- 
sary to  quarrel  about  terms,  but  Eliza- 
beth Walker  is  nothing  more  nor  less 
than  a  residuary  legatee.  The  inten- 
tion of  the  testator,  at  the  time  of  the 
making  of  the  will,  most  certainly 
was,  that  after  his  debts  and  funeral 
charges  were  paid,  then  what  remain- 
ed he  bequeathed  to  his  widow  as 
legatee.  If  nothing  remained,  then 
nothing  is  bequeathed  to  her.  It 
cannot  in  any  sense  be  considered  as 
a  specific  bequest  of  the  remainder  to 
her.  The  law  creates  the  fund  for 
the  payment  of  the  debts,  and  the 
testator  bequeathes  to  her  what  re- 
mains, after  satisfying  the  requisitions 
of  the  law.     If  this  be  the  true  read- 


ing of  the  will,  then  the  widow  will 
get  precisely  what  the  testator  intend- 
ed she  should  have,  viz.,  all  that  re- 
mained of  his  personal  estate  at  the 
time  of  his  death,  after  payment  of 
the  charges  which  the  law  imposes 
upon  the  laud."  It  was  accordingly 
decided,  that  the  debts  of  the  testator 
should  be  paid  out  of  the  personal 
estate  bequeathed  to  the  widow. 

It  follows  from  this  decision  that  a 
bequest  of  personal  property,  which  is 
merely  general  and  in  no  sense  specific, 
although  not  in  terms  residuary,  will 
not  imply  an  intention  to  exempt  it 
from  the  burden  of  debts,  or  to  throw 
them  on  the  real  assets,  whether  held 
at  the  time,  or  acquired  subsequently. 
The  point  thus  determined,  is  fully 
sustained  by  the  English  authorities, 
under  which  it  is  well  settled,  that 
real  assets  will  not  be  marshalled  in 
aid  of  a  residuary  legacy,  even  when 
subject  to  a  specific  lien  for  the  debt; 
Rider  V.  Wager,  2  P.  Wms.  328; 
Hamilton  v.  Worloi/,  4  Brown,  C.  C. 
204;  Huston  v.  Huston,  2  Yeates, 
54,  63 ;  ante,  vol.  1,  p.  647 ;  or 
even  of  a  bequest  of  the  whole  per- 
sonal estate,  although  not  in  terms  re- 
siduary, unless  there  are  words  of 
demonstration  or  description  to  render 
it  specific,  or  unless  there  is  a  plain 
declaration  or  manifest  intent,  that 
the  land  shall  be  primarily  chargeable 
with  the  payment  of  debts;  Howe  v. 
The  Earl  of  Dartmouth,  7  Vesey, 
137;  a7ite,  vol.  1,  p.  625,  note  to  Duke 
of  Ancaster  v.  Mayer.  Otherwise  the 
presumption  will  be,  that  the  testator 
intended  the  legatee  to  have  not  a  fixed 
or  determinate  amount  or  value,  but 
merely  the  personal  estate,  such  as  it 
might  prove  to  be,  after  all  legal 
charges  and   deductions.     This   pre- 


ALDRICH     V.      COOPER. 


255 


sumption  will  not  be  rebutted,  by  a 
general  charge  of  the  debts  on  the 
land,  whether  imposed  by  the  testator, 
or  implied  as  in  this  country  by  the 
law;  Ancaster  v.  Mayer,  1  Brown's  C. 
C.  454 ;  Keiling  v.  Broion,  5  Vesey, 
350 ;  although  a  specific  appropria- 
tion of  the  land  for  the  payment  of 
debts  making  it  the  primary  fund, 
will  of  course  exonerate  the  person- 
alty ;  Adams  v.  Meyrick,  1  Equity 
Cases,  Abr.  271;  Waimvrirjht  v. 
Bendhwes,  2  Yernon,  718;  Webb  v. 
Jones,  2  Brown's  C.  C.  60;  Bard- 
well  V.  Bardwell,  10  Pick.  19 ;  Lee, 
Appellant,  18  Id.  285 ;  Spraker  y. 
VaiiAlstyne,  18  Wend.  200;  while  the 
same  result  will  follow  from  a  bequest 
of  the  personalty  to  one  man,  and  a 
devise  conditioned  for  the  payment  of 
debts,  to  another;  IPFaifs  Appeal, 
8  Barr,  90 

But  although  the  personal  estate  of 
the  testator  is  the  primary  fund  for 
the  payment  of  debts,  notwithstand- 
ing a  general,  or  even  a  specific  charge, 
on  the  real  estate,  when  the  question 
arises  as  between  the  heir  and  a  resi- 
duary, or  merely  general  legatee,  yet 
the  rule  is  the  other  way  where  the 
legacy  is  pecuniary  or  specific,  for  as 
the  testator  has  manifested  an  inten- 
tion, that  the  legatee  should  have  a 
bequest,  certain  in  nature  or  amount, 
it  will  be  presumed  that  he  did  not 
mean  that  this  intention  should  be  de- 
feated by  the  payment  of  debts ;  Light- 
foot  V.  Lightfoot,  27  Alabama,  351 : 
and  it  was  said  in  Liglitfoot  v.  Light- 
foot,  that  a  bequest  of  all  the  pro- 
perty of  a  specific  kind,  possessed  by 
a  testator,  would,  for  this  purpose, 
be  considered  as  specific ;  ante,  213. 
"  The  bounty  of  the  testator  entitles 
a  legatee  to  marshal  the  assets ;  and 


the  choice  of  the  creditors,  to  pro- 
ceed against  the  personal  estate,  in- 
stead of  the  real  estate  descended, 
shall  not  preclude  the  payment  of  the 
legacy;"  Post  v.  Mackall,  3  Bland, 
486,  508.  "And  if  the  debt  is  a 
specific  lien  upon  the  land,  as  in  the 
case  of  a  mortgage,  a  legatee  may  in 
some  cases  stand  in  the  place  of  the 
mortgagee,  who  has  exhausted  the 
personal  estate,  even  as  against  a  de- 
visee ;"  per  Walworth,  chancellor, 
Mollan  V.  Griffith,  3  Paige,  402. 

Pecuniary  and  general  legacies, 
were  also  held  entitled  to  exemption 
from  the  payment  of  debts,  at  the  ex- 
pense of  lands  taken  by  descent,  in 
Robards  v.  Wortham,  2  Dev.  Equity, 
173;  Warley  v.  Warley,  1  Bailey, 
Equity,  397 ;  Brown  v.  James,  1 
Strobhart,  Equity,  424,  and  Dunlap 
\.  Bunlap,  4:  Dessaussure,  305;  al- 
though in  the  latter  case  the  court  re- 
lied upon  special  cousidei'ations.  And 
there  can  be  no  doubt,  that  where  le- 
gacies have  been  burdened  with  the 
payment  of  debts,  which  in  point  of 
equity  ought  to  have  fallen  upon  the 
land,  the  legatees  will  be  entitled  to 
stand  in  the  place  of  the  creditors, 
and  be  subrogated  to  their  remedies 
against  the  realty;  Cryder's  Appeal, 
1  Jones,  72. 

As  the  law  formerly  stood  in  Eng- 
land, equity  could  only  subject  the 
land  to  the  payment  of  debts  in  relief 
of  legatees,  in  those  cases  where  the 
debts  were  a  charge  upon  the  land  in 
their  own  nature,  as  in  the  case  of  re- 
cognizances and  specialties,  or  where 
the  testator  had  given  them  that  cha- 
racter by  a  general  charge  for  the  pay- 
ment of  debts.  In  this  country,  how- 
ever, from  an  early  period,  and  recent- 
ly in  England,  the  law  has  charged 


256 


MARSHALLING     ASSETS. 


all  debts  ou  the  land,  and  although 
this  has  not  the  eflFect  of  exonerating 
the  personalty  from  primary  liability, 
yet  it  gives  the  means  of  exonerating 
it,  when  necessary  to  give  effect  to  the 
intention  of  the  testator.  It  would, 
therefore  appear,  that  the  land  should 
be  applied  in  exoneration  of  the  per- 
sonalty, at  the  present  day,  both  in  this 
country  and  in  England,  under  the 
charge  implied  by  the  law,  whenever 
that  result  would  have  followed,  for- 
merly under  a  general  charge  in  the 
will  itself;  ante,  213  ;  Lhjhtfoot  v. 
iiV//i{/bo^,  27  Alabama,  351;  The  Com- 
monwealth  v.  Shdhi/,  13  S.  &  E,. 
348,  354.  This  seems  to  follow  from 
the  fact,  that  such  a  charge  was  mate- 
rial, not  as  showing  an  intention  to 
exempt  the  personal  estate,  but  as 
giving  the  means  of  rendering  the 
intention  that  it  should  be  exempt- 
ed effectual,  when  shown  by  pecu- 
niary or  specific  bequests.  And  as 
the  law  now  supplies  the  same  means, 
they  should  be  applied  for  the  same 
purpose,  even  when  not  furnish- 
ed by  the  testator.  But,  however 
sound  such  a  course  of  decision  may 
appear,  it  has  not  been  universally 
adopted. 

It  was  held  in  Alston  v.  Mun/ord, 
ante,  218,  that  the  right  to  marshal 
assets,  only  applies  where  the  party 
whom  it  is  sought  to  throw  on  one 
fund,  in  exoneration  of  the  other,  has 
a  primary  and  absolute  right  of  re- 
course against  both.  And  it  was  con- 
sequently decided,  that  simple  con- 
tract-creditors could  neither  compel 
the  satisfaction  of  a  judgment  out  of 
the  realty,  nor  be  subrogated  to  it 
when  satisfied  out  of  the  personalty, 
because  the  judgment-creditor  had  no 
right  to  proceed  against  the  laud,  un- 


less in  the  event  of  a  failure  of  the 
personal  assets,  which  it  was  the  duty 
of  the  executor  to  apply  iu  the  first 
place  to  the  payment  of  the  judgment. 
Similar  reasoning  was  held  conclusive 
iu  MlUer  v.  Johnson,  3  Murphy,  194, 
and  Rohards  v.  Wortham,  2  Dev. 
Equity,  173,  against  the  right  to 
throw  the  burden  of  simple  contract 
debts  on  the  real  assets,  in  exonera- 
tion of  specific  legacies;  on  the  ground 
that  lands  are  liable  for  the  payment 
of  such  debts,  only  iu  the  event  of 
the  failure  of  the  personalty.  And 
in  Chase  \.  Lockerman,  11  Gill  & 
Johnson,  186,  while  devises  were  held 
liable  to  contribution  with  specific  le- 
gacies, for  the  payment  of  specialties, 
they  were  held  exempt,  as  it  regarded 
debts. due  by  simple  contract;  appa- 
rently from  the  idea,  that  the  land  is 
a  primary  fund  as  to  the  former,  but 
not  the  latter.  But  it  seems  to  have 
been  overlooked  in  these  cases,  that 
although  the  law  makes  the  personal- 
ty the  primary  fund,  this  is  undoubt- 
edly subject  to  the  will  of  the  testa- 
tor, and  that  when  he  has  appropri- 
ated it  to  other  purposes,  there  is 
every  reason  why  the  debts  should  be 
paid  out  of  the  land.  The  argument 
in  Alston  v.  Manford,  seems  equally 
questionable,  for  although  in  general 
it  may  be  the  duty  of  an  executor  to 
apply  the  personal  assets  in  payment 
of  a  judgment,  in  exonei'ation  of  the 
land,  yet  equity  may  compel  or  justi- 
fy a  different  course,  when  necessary 
for  the  protection  of  creditors  by  sim- 
ple contract,  and  not  prejudicial  to 
those  claiming  under  the  judgment. 

The  courts  of  South  Carolina  have 
abrogated  the  distinction  which  pre- 
vails in  England,  and  was  recognized 
iu  Walker  s  Estate,  between  specific 


ALDRICH     V.     COOPER. 


257 


or  pecuniary,  and  general  or  residuary 
legacies,  and  hold,  that  whatever  the 
form  of  a  bequest  of  personal  estate, 
it  implies  an  intention,  that  the  lega- 
tee shall  take  it  free  from  debts,  unless 
a  contrary  intention  is  apparent  in  the 
wording  of  the  bequest  itself;  Wa?'- 
Icij  V.  IVa/'Zey,  1  Bailey,  Equity,  397. 
And  it  was  accordingly  decided,  that 
if  a  testator  give  his  whole  personal 
estate,  or  the  residue  of  his  personal 
estate,  after  bequeathing  specific  le- 
gacies, the  debts  must  be  paid  out  of 
the  real  estate,  although  if  the  bequest 
be  of  the  residue  after  the  payment 
of  debts,  the  payment  will  fall  on  the 
personalty.  And  in  Broicn  v.  James, 
3  Strobhart,  Equity,  24,  it  was  held 
by  the  court,  that  apart  from  the  deci- 
sion in  Warley  v.  Warhi/,  with  regard  to 
bequests  which  are  in  form  residuary, 
there  can  be  no  doubt,  that  where  the 
testator,  after  giving  all  his  personal 
property,  goes  on  to  describe  in  what 
it  consists,  the  bequest  will  be  speci- 
fic, and  as  such,  entitled  to  be  exempt- 
ed from  debts  at  the  expense  of  the 
real  estate  in  the  hands  of  the  heir. 

A  similar  view  has  been  taken  in 
New  York,  and  a  bequest  of  the 
whole,  or  of  an  aliquot  part  or  pro- 
portion of  the  personalty,  held  to  ex- 
onerate it,  and  throw  the  burden  of 
debts  on  the  realty;  Hoes  v.  Van 
Iloescan,  1  Barbour,  Ch.  380 ;  1 
Comstock,  120.  And  there  can  be 
no  doubt  that  this  result  will  follow, 
whenever  the  testator,  while  mak- 
ing a  general  bequest  of  his  personal 
property,  also  manifests  an  intention 
that  his  debts  shall  be  paid  in  the  first 
instance,  out  of  the  land  ;  J/'  Glaugh- 
lin  V.  J/'  Glaugldin,  12  Harris,  20 ;  Van 
Ahti/ne  V.  Sjirackcr,  18  Wend.  209 ; 
ante,  vol.  1,  p.  626,  note  to  Ancastcr  v. 

VOL.  II. — 17 


Mayer.  Thus,  in  the  case  of  Lee,  Ap- 
l^ellant,  IS  Pick.  28.5,  where  the  whole 
personal  estate  was  given  absolutely  to 
the  wife,  and  a  particular  tract  of  land 
directed  to  be  sold  for  the  payment  of 
debts,  which  was  subsequently  alien- 
ed by  the  testator,  and  other  land  ac- 
quired, the  legatee  was  held  entitled 
to  be  exonerated  from  the  debts,  at  the 
expense  of  the  after-acquired  assets, 
in  the  hands  of  the  heir;  the  distinc- 
tion between  the  case  before  the  court 
and  that  of  Hays  v.  Jackson,  ante, 
being  said  to  be,  that  the  bequest  in 
the  one  was  residuary,  and  impliedly 
charged  with  the  payment  of  debts, 
while  it  was  not  only  general  in  the 
other,  but  coupled  with  the  manifes- 
tation of  a  design  that  the  debts  should 
be  paid  out  of  the  testator's  real,  as 
distinguished  from  his  personal  assets. 

It  is  well  settled,  however,  that  pe- 
cuniary legacies  must  yield  in  priori- 
ty to  a  devise,  because  such  legacies 
are  considered  as  general  while  every 
devise  is  specific;  Livingston  v.  Liv- 
ingston, 3  Johnson,  Ch.  148,  158; 
]\P  Camx)heU  v.  M^  Campbell,  5  Littell, 
92.  This  was  so  held  in  Hoover  v. 
Hoover,  5  Barr,  351,  but  it  was  at  the 
same  time  decided,  that  if  land  be  de- 
vised as  a  primary  and  specific  fund 
for  the  payment  of  legacies,  it  must 
necessarily  bear  the  burden  thus 
thrown  upon  it,  and  hence  the  exist- 
ence of  debts  will  not  be  a  reason  for 
discharging  it  from  the  legacies.  The 
same  point  was  decided  in  3I'Fait's 
Appeal,  8  Barr,  290. 

It  seems  that  in  England,  specific 
legacies  are  entitled  to  subject  devises 
to  contribution,  for  the  payment  of 
debts,  not  otherwise  payable ;  and 
which  are  or  have  been  made  a  lien 
or   charge  on  the   laud;    ante,  211. 


258 


MARSHALLING     ASSETS. 


But    it    was    held    by    the    Supreme 
Court  of  North   Caroliua,   in   Miller 
V.   IlnnceU,  3  Murphy,   194,  that  a 
specific    legatee    whose    legacy    had 
been  taken  for  the  payment  of  debts, 
could  not  come  for  indemnity  or  con- 
tribution upon  the  proceeds  of  land 
specifically  devised,  which  had  been 
sold  by  the  executors   under  a  dis- 
cretionary power,  given   by  the  tes- 
tator to  sell  all  his  property,  or  such 
portion  of  it,  as  they  might  deem  ne- 
cessary for  the  payment  of  his  debts. 
The  power  was  treated  as  amounting 
to  nothing  more  than  a  general  charge 
of  debts,  and  was  held  not  to  vary  the 
order,  in  which  the  assets  were  appli- 
cable   in    payment.      Lands    devised 
were  also  treated  as  completely  exon- 
erated from  the  payment  of  debts,  in 
Warley  v.  Warley,  1  Bailey's  Equity, 
397.     And  in    Rogera  v.   Eoi/ers,  1 
Paige,  183, 194,  it  was  said  by  Chan- 
cellor "Walworth,  that  if  a  testator  be- 
queathes chattels  specifically  to  one 
man,  and  devises  real  estate  to  another, 
his  debts  must  be  satisfied  out  of  the 
former,  and  not  the  latter.     The  opi- 
nions expressed  in  the  cases  last  cited 
were,   liowcver,   ohiter  dicta,   as  the 
point  did  not  arise  in  a  shape  for  de- 
cision.     In    Huhhell   v.    Iluhhell,    9 
Pick.  561,  the  question  was  said  to  be 
still  open  in  Massachusetts,  while  in 
Chase  v.  Locherman,  11  Gill  &  John- 
son, 186,  the  court  followed  the  letter 
of  the  English  rule,  by  holding,  that 
lands  devised  were  bound  to  contri- 
bute equally  with  specific  bequests  to 
to  the  payment  of  debts  due  by  speci- 
alty, but  not  to  those  due  by  simple 
contract,  without  making  'any  allow- 
ance for  the  change  in  American  law, 
which  has  rendered  land  liable  for  the 
payment  of  all  debts.     And  tliis  case 


was  followed  in  Dugan  v.  IloUins,  4 
Maryland  Ch.  139;  11  Maryland,  41, 
notwithstanding  the  argument  that 
as  lands  are  equally  liable  in  Maryland 
for  all  debts  whether  by  simple  con- 
tract or  specialty,  they  should  contri- 
bute alike  to  both  in  aid  of  specific 
legatees. 

In  Stuart  v.  Carson,  1  Dessaussure, 
500,  legacies  expressly  bequeathed  in 
discharge  of  claims  for  services  ren- 
dered to    the  testator,  were,  on  this 
ground,  held  entitled  to  exoneration, 
even  at  the  expense  of  lands  devised. 
In  The  Commonwealth  v.  Shelhy,  13 
S.  &  R.  348,  a  legacy  to  the  widow  of 
the  testator,  payable  by  the  executors 
in  specific  articles  "  out  of  the  estate," 
was  held  to  be  entitled  to  a  priority, 
both  over  lands  devised  and  descend- 
ed.    And   in   BarJday's   Estate,  10 
Barr,   387,  and   Cryder's  Appeal,  1 
Jones,  72,  it  was  decided,  that  lega- 
cies have  an  absolute  priority  in  the 
distribution  of  the  proceeds  of  land 
directed  to  be  sold  for  their  payment, 
and  are  entitled  to  enfor'ce  contribu- 
tion from  other  lands  specifically  de- 
vised by  the  same  will.     But   such 
legacies  are  demonstrative  rather  than 
specific,  and  by  charging  them  upon 
land,  the  testator  shows  an  intention 
to  put  them  on  an  equal  or  superior 
footing   with   devises  of  real  estate. 
These  decisions  are,  therefore,  hardly 
in  point  on  the  question  of  contribu- 
tion as  between  devises  and  ordinary 
specific  bequests,  and  cannot  be  relied 
on  as  countervailing  the  authority  of 
Miller  v.  Harwell,  and  Cliase  v.  Loch- 
erman. 

The  decision  in  3Hller  v.  Ilaruell 
would,  however,  appear  exceedingly 
questionable  on  principle,  and  apart 
from  authority,  notwithstanding  the 


ALDRICH     V.     COOPER. 


259 


weight  due  to  the  opiniou  of  Chief 
Justice  Taylor,  by  whom  it  was  pro- 
nounced. It  is  undoubtedly  true,  tliat 
a  charge  of  debts  upon  land,  or  a  di- 
rection that  hind  shall  be  sold  for  the 
payment  of  debts,  does  not  make  the 
land  the  primary  fund  for  the  pay- 
ment of  the  debts;  Lloinc/ston  v. 
Newku-k,  3  Johnson,  Ch.  312;  Cor- 
nish V.  Wikon,  C  Gill,  299:  Nagles 
Appeal,  1  Harris,  260,  264 ;  jjosf, 
note  to  Silk  v.  Prime.  Such  a 
charge  is  nothing  more  than  the  law 
implies  in  England,  with  regard  to 
debts  due  by  specialty,  and  in  this 
country  as  to  all  debts  whatever.  It 
does  not,  therefore,  show  an  intention 
to  exonerate  the  personalty  at  the  ex- 
pense of  the  realty,  although  when 
such  an  intention  is  collected  from 
other  sources,  it  may  furnish  the 
means  of  carrying  it  into  effect;  Kel- 
sey  V.  Western,  2  Comstock,  500  ;  ante, 
vol.  1,  p.  623.  A  distributee,  therefore, 
or  a  residuary  legatee,  cannot  rely 
upon  a  power  given  to  executors  to 
sell  land  for  the  payment  of  debts,  as 
relieving  the  personal  estate  from  the 
burden  of  payment.  Thus,  it  was 
held  in  Gray  v.  Minnethdrpe,  3  Vesey, 
103,  that  a  devise  of  land  in  trust  for 
the  payment  of  debts,  would  not  cast 
the  debts  upon  the  land,  where  no 
disposition  was  made  in  the  will  of 
the  personalty.  But  where  the  tes- 
tator couples  a  charge  of  his  debts  on 
the  land,  with  the  gift  of  a  pecuniary 
or  specific  legacy,  a  new  element  is  in- 
troduced by  the  expression  of  a  dis- 
tinct purpose,  that  the  legatee  shall 
have  the  amount  or  the  thing  given. 
And  the  inference  becomes  necessary 
or  reasonable,  that  he  intended  all  the 
provisions  of  the  will  to  be  applied  in 
their  order,  for  carrying  this  purpose 


into  effect;  Liijliffoot  v.  Lighffuot,  27 
Alabama,  351 ;  Fenwick  v.  C'hajjmun , 
9  Peters,  461. 

When,  however,  the  will  contains  a 
devise  of  the  land  as  well  as  a  specific 
bequest  of  the    personalty,  the   pre- 
sumption in  favor  of  the  legatee,  is  en- 
countered   by  an  equal    presumption 
for   the    devisee.      Hence,    it    would 
seem  that  any  burden  of  a  nature  to 
defeat  the  interest  of  either,  should, 
on  general  principles,  be  apportioned 
equally  between  both.     In   the   case 
of  debts,  which  are  neither  a  charge 
upon    the    land   in    themselves,    nor 
charged  upon  the  land  by  the  testator, 
this  cannot  be  done  for  the  want  of 
the    means    of    apportionment,    but 
where  these  means  are  supplied  by  the 
act  of  the  testator  or  of  the  law,  they 
should  unquestionably  be  employed  to 
produce    that  equality,  which  is  the 
chief  aim  of  equity  in  the  distribution 
of  assets.     It  would  accordingly  seem, 
that  equity  will  compel  contribution 
in  England,  from  devisees  in  aid  of 
specific   legacies,  for  the  payment  of 
debts  which  are  a   lien  on  the  land 
in    their  own    nature,  or  have    been 
made  a  charge  upon  it  by  the  testator; 
or  in   other  words,  whenever  it  has 
the  means  of  compelling  the  devisees 
to  bear  their  share  of  the  burden  in 
aid  of  the  legatees.     Whether  these 
means  are  supplied  by  the  act  of  the 
law,  or  by  that  of  the  testator,  obvi- 
ously makes  no  difference  in  point  of 
principle,  and  we  may,  consequently, 
infer  that  contribution  should  be  en- 
forced   between   devises  and  specific 
legacies  for  all  debts,  whether  simple 
contract  or   by  specialty,  which    are 
liens  upon  the  land,  and  payable  out  of 
it,  in  the  absence  of  personal  property 
appropriately    applicable    to     paying 


260 


MARSHALLING     ASSETS. 


them.  This  view  is  sustained  by  the 
recent  case  of  HalloioeWs  Estate,  11 
Harris,  223,  which  decides  that  de- 
vises stand  on  the  same  footing  with 
specific  and  demonstrative  legacies, 
and  must  contribute  equally  with 
them,  to  the  payment  of  every  debt,  of 
whatever  nature,  which  cannot  be 
paid  out  of  the  mass  of  personal  assets. 
But  in  Dugan  v.  IloUins,  4  Maryland 
Ch.  139;  11  Maryland,  41,  the  court 
arrived  at  the  opposite  conclusion,  and 
held  that  although  simple  contract 
and  specialty  debts  are  now  equally 
cliargeable  upon  and  payable  out  of 
land,  the  right  of  legatees  to  subject 
devises  to  contribution  is  limited  to 
the  latter,  and  does  not  extend  to  the 
former,  even  when  the  result  is  to  de- 
feat the  legacies  altogether. 

In  ndllrmeWs  Estate,  the  court  cited 
and  relied  on  the  prior  case  ofBarelaT/'s  . 
Estate,  10  Barr,  387,  where  a  direc- 
tion that  a  tract  of  land  should  be  sold, 
and  S300  of  the  proceeds  paid  to  the 
o-rand-daughters  of  the  testator,  and 
the  residue  to  his  daughters,  fol- 
lowed by  a  specific  devise  of  another 
tract  to  a  son,  was  held  to  render  the 
son  and  daughters  equally  liable  to 
contribute  to  the  payment  of  debts, 
while  exonerating  the  grand-children 
from  all  liability,  and  entitling  them  to 
their  legacies  without  abatement;  the 
ground  taken  being,  that  as  the  gift  of 
the  proceeds  of  a  thing  confers  as  high 
a  right  as  the  gift  of  the  thing  itself,  a 
devise  of  the  proceeds  of  lands  is  equi- 
valent to  a  devise  of  land,  and  that  the 
son  who  had  no  superiority  over  the 
daughters,  must  yield  to  the  grand- 
daughters, who  were,  by  the  will,  to  be 
paid  before  the  daughters.  When,  how- 
ever, there  are  no  special  words  deno- 
tlnga  contrary  intention,  a  legacy  given 


or  payable  specifically  out  of  land,  puts 
the  legatee  in  the  same  position  as  if 
the  land  itself  had  been  given,  and 
entitles  him  to  contribution  from  de- 
visees, but  not  to  throw  the  whole 
burden  of  debts  upon  them  for  his  own 
exoneration;  Gaio  v.  Ilvffman,  12 
Grattan,  G28 ;  Cr^jder^s  Appeal,  1 
Jones,  72;  31' Campbell  y.  3I'Cav\p- 
Ml,  5  Littell,  92. 

Were  the  question  still  open,  there 
might  be  some  reason  for  contending 
that  all  gifts,  which  denote  an  inten- 
tion that  the  donee  shall  have  a  defi- 
nite amount  or  value,  should  take 
equal  rank,  and  ^haic,  pro  rata,  when 
necessary,  whether  the  gift  take  the 
form  of  a  pecuniary  bequest,  or  of  a  spe- 
cific devise  or  legacy.  It  is,  however, 
thoroughly  well  settled,  in  England, 
that  pecuniary  legatees  must  look 
solely  to  the  personalty,  and  cannot 
ask  assistance  from  land  devised  even 
for  the  payment  of  debts  which  arise 
by  specialty,  and  are,  consequently, 
liens  in  their  own  nature ;  Clifton  v. 
Burt,  1  P.  Wms.  GT8 ;  and  the  same 
rule  prevails  generally,  if  not  univer- 
sally, in  this  country;  ante,  vol.  1,  p. 
638.  Pecuniary  legacies  are,  how- 
ever, said  to  be  entitled  to  marshal  the 
assets  for  the  purpose  of  throwing  the 
burden  of  debts  upon  devises  of  lands 
which  have  been  charged  generally  or 
specially  with  their  payment;  Hoover 
V.  Hoover,  5  Barr,  351,  357,  unless 
the  charge  includes  both  the  real  and 
personal  property,  when  devises  and 
legacies  must  contribute  equally  to 
the  payment  of  debts,  and  abate  pro 
rata,  if  there  be  any  deficiency- 
Elliott  V.  Carter,  9  Grattan,  541,  552. 
And  pecuniary  and  specific  legatecsj 
stand  in  a,  better  position  than  a 
devisee   of   land    sul)jeet    to   a  iiiort- 


ALDRICII     V.      COOPER. 


261 


gafre;  and  are  entitled  to  throw  tlie 
00/ 

burden  of  the  debt  upon  him  in  case 
the  residue  of  the  personalty  prove  in- 
sufficient for  its  payment;  ante,  vol.  1, 
p.  G47 ;  Ruston  v.  Huston,  2  Dallas, 
243 ;  W//fhe  v.  Eenniker,  2  Mylne  & 
Keene,  635 ;  and  it  necessarily  fol- 
lows, that  he  cannot  claim  contribu- 
tion from  the  devisees  of  other  land, 
to  which  the  mortgage  does  not  ex- 
tend;  Gibson  V.  M'Connick,  10  Gill 
&  Johnson,  65 ;  unless  they  have  been 
charged  with  the  payment  of  debts 
b}^  the  will  of  the  testator;  ante,  vol. 
1,  p.  637. 

The  decision  of  the  Supreme 
Court  of  Pennsylvania,  in  Barclay'' s 
Estate,  10  Barr,  387,  affords  a 
striking  illustration  of  the  principle, 
that  assets,  whether  real  or  personal, 
will  be  so  marshalled  as  to  give  effect 
to  the  dispositions  of  the  will.  The 
testator  directed  that  part  of  his  land 
should  be  sold,  for  the  purpose  of  giv- 
ing effect  to  his  will,  and  the  pro- 
ceeds, after  deducting  three  hundred 
dollars,  divided  between  his  daugh- 
ters. He  then  gave  a  legacy  of  three 
hundred  dollars  to  his  grand-children, 
and  finally  devised  the  residue  of  his 
real  estate  to  his  widow  and  son. 
Under  these  circumstances,  the  court 
held  that  the  land  directed  to  be  sold, 
and  the  land  devised  to  the  sons, 
should  contribute  j:)ro  rata  to  the  pay- 
ment of  the  debts,  and  that  the  legacy 
to  the  grand-children  should  be  paid 
without  abatement,  out  of  the  pro- 
ceeds of  the  former,  even  if  the  legacy 
to  the  daughters  were  entirely  ex- 
cluded. In  Long  v.  Short,  1  P. 
Wms.  403,  a  different  result  was  at- 
tained under  circumstances  which 
might  at  first  sight  appear  similar. 
The    testator   gave  a  rent-charfre   of 


£40  a  year,  out  of  a  leasehold  to  one 
grandson,  the  leasehold  itself  to  an- 
other, and  devised  all  his  freehold 
estates  to  the  plaintiff.  Under  these 
circumstances,  it  was  held  by  Lord 
Chancellor  Cowper,  that  the  rent- 
charge,  the  leasehold  subject  to  it, 
and  the  freehold  estates,  were  all 
bound  to  contribute  jrro  rata  to  the 
payment  of  specialty  debts.  Cut  the 
distinction  between  this  case  and  that 
of  Barclay's  Estate,  undoubtedly  is, 
that  in  the  former  there  was  a  gift  of 
substantive  and  different  estates,  the 
rent-charge  being  wholly  distinct  from 
the  leasehold,  out  of  which  it  issued, 
while  in  the  latter  there  was  a  bequest 
of  a  specific  sum,  out  of  the  proceeds 
of  the  sale  of  the  land,  which  made 
the  legacy  in  effect  a  charge  upon,  or 
rather  a  gift  out  of  the  realty;  Creed 
v.  Creed,  1  Drury  &  Warren,  416. 
When  this  is  the  case,  the  rights  of 
the  legatees  are  not  dependent  upon 
the  equitable  principles,  on  which 
chancery  marshals  assets  and  decrees 
contribution,  but  rest  directly  on  the 
trust,  which  the  testator  has  created 
for  their  benefit ;  Mireliouse  v.  Sea  if e, 
2  3Iylne  &  Craig,  095. 

It  has  been  seen  that  devisees  stand 
on  the  same  or  a  higher  footing,  as  it 
regards  exemption  from  the  debts  of 
the  testator,  with  legatees,  and  real 
assets  which  have  descended  to  the 
heir,  will  therefore  be  marshalled  for 
the  protection  of  devisees,  unless  a 
contrary  intention  appear  in  the  will 
itself;  Brooks  v.  Dent,  1  Maryland, 
Ch.  523.  Thus  in  Livingston  v.  Keic- 
kirJc,  3  Johnson,  Ch.  312,  where  the 
testator  directed  that  his  debts  should 
be  paid  out  of  his  personal  estate,  and 
if  that  proved  insufficient  out  of  his 
real  estate,  and  then  "ave  all  the  rest 


262 


MARSIIALLINO     ASSETS. 


and  residue  of  his  estate,  real  and  per- 
sonal, to  his  wife,  it  was  decided,  that 
the  charge  thus  created  on  the  lands 
held  at  the  execution  of  the  will,  was 
not  sufficient  to  render  them  applica- 
ble to  the  payment  of  his  debts  before 
resorting  to  other  lands  which  he  ac- 
quired subsequently,  and  which  had 
descended  to  his  heirs.  This  decision 
was  approved  and  followed  in  Stires  v. 
Stires,  1  Halsted,  224;  while  in  Adams 
V.  Bracket,  5  Metcalf,  280,  where 
a  testator  devised  specific  lots  of  land 
to  his  wife,  and  gave  her  by  the  same 
clause  all  his  personal  estate  after  the 
payment  of  his  debts,  the  court  di- 
rected lands  which  had  descended,  to 
be  sold  for  the  payment  of  the  debts, 
upon  the  exhaustion  of  the  personal 
assets,  before  authorizing  a  recourse 
to  those  devised  to  the  wife.  But  it 
seems  to  have  been  thought,  that  if 
the  real  and  personal  estates  had  been 
blended,  so  as  to  make  both  a  com- 
mon fund  for  the  payment  of  debts 
and  legacies,  the  result  would  have 
been  different,  and  tlie  right  of  the 
heirs  superior  to  that  of  the  devisee, 
and  the  point  was  so  ruled  in  Hall  v. 
Ilnll,  2  M'Cord,  Ch.  2()0.  The  ques- 
tion is,  however,  purely  one  of  inten- 
tion ;  and  whenever  the  tenor  of  a 
devise  is  such  as  to  show  that  the  tes- 
tator meant  the  interest  of  the  devisee 
to  be  limited  to  what  remained  after 
the  payment  of  debts,  eifect  will  be 
given  to  his  wishes,  and  the  burden  of 
debts  thrown  on  the  devisee  in  exone- 
ration of  the  heir. 

In  JTaJ/s  V.  Jackson,  0  Mass.  149, 
the  testator,  after  directing  that  his 
debts  should  be  paid,  and  giving  his 
nephews  legacies  of  fifty  dollars  each, 
made  a  specific  devise  to  his  sister, 
and  then  gave  all  the  rest  and  residue 


of  his  property,  real  and  personal, 
which  he  then  had,  or  which  he  might 
afterwards  acquire,  to  a  residuary  de- 
visee. He  subsequently  acquired  other 
real  estate,  which  descended  to  his 
heirs,  and  the  question  was,  as  to  the 
order  in  which  the  real  and  personal 
estate  should  be  applied  to  the  payment 
of  his  debts.  Under  these  circum- 
stances, it  was  held  by  the  court,  that 
the  personal  property  was  liable  in  the 
first  instance,  and  that  although  the 
specific  devise  to  the  sister  had  a  pre- 
ference over  the  after-acquired  assets 
in  the  hands  of  the  heirs,  the  latter 
were  to  be  preferred  to  the  lands  com- 
prised in  the  residuary  devise,  which 
were  held  to  be  liable  next  in  order 
to  the  personal  property.  The  implied 
charge  of  debts  on  the  residuary  de- 
vise, seems  to  be  the  key  to  the  whole 
decision ;  for  it  is  well  settled,  that 
after-acquired  lands  are  liable  in  the 
hands  of  the  heir  for  the  payment  of 
debts,  before  specific  devises,  and 
every  devise  of  land  is  said  to  be  spe- 
cific ;  Livingsto7i  v.  Neivkirk,  8  John- 
son, Ch.  312. 

It  would  appear,  however,  that  a 
mei'e  charge  upon  land  devised,  will 
not,  unless  primary,  render  it  subject 
to  debts  before  lands  descended,  whe- 
ther held  at  the  time  or  acquired  sub- 
sequently, and  that  no  inference  of  a 
contrary  nature  can  be  drawn  from 
Hayes  v.  Jackson,  which  determines 
that  a  residuary  devise  of  real  and 
personal  property,  following  a  charge 
of  debts,  means  that  residue  which 
may  remain  after  the  debts  are  paid, 
and  is  not  at  variance  with  the  posi- 
tion, that  the  presumption  arising 
from  a  gift  in  a  Avill,  that  the  donee 
is  to  have  what  is  given,  will  justify 
him  in  claiming  absolutely  as  against 


ALDRICII     V.      COOPER. 


263 


all  who  claim  merely  by  descent.  The 
English  authorities  do  not  authorize 
the  idea  that  when  a  devisee  or  lega- 
tee would  be  entitled  to  throw  the 
debts  upon  real  assets,  purchased  be- 
fore the  date  of  the  devise,  he  will  not 
have  the  same  right  as  to  those  which 
are  acquired  afterwards.  The  rule 
in  England  seems  to  be  well  settled, 
that  after-acquired  lands  in  the  hands 
of  the  heir,  will  be  charged  with  the 
payment  of  debts  which  are  chargea- 
ble per  se  on  land,  even  when  there  is 
a  general  charge  on  the  lands  passed 
by  the  will,  and  that  nothing  short 
of  a  specific  charge  on  the  lands  de- 
vised, showing  an  intention  to  convert 
them  into  the  primary  fund  for  the 
payment  of  debts,  will  have  the  effect 
of  binding  them,  and  exonerating 
lands  taken  by  descent;  Wride  v. 
Clark,  1  Dickens,  382;  Manning  y. 
Spooner,  3  Vesey,  114;  3Iihies  v. 
Slater,  8  Id.  295.  The  law  was  so 
held  by  Chancellor  Kent,  in  Livings- 
ton V.  Ncivkirk,  3  Johnson,  Ch.  312, 
where  the  question  arose  as  between 
lands  devised,  subject  to  a  general 
charge  for  the  payment  of  debts,  and 
after-acquired  lauds  in  the  hands  of 
the  heir.  This  rule  only  applied  as 
the  law  formerly  stood  in  England,  to 
debts  due  by  specialty  or  record,  for 
a  court  of  equity  could  not  affect  land 
with  the  payment  of  other  debts  with- 
out the  aid  of  the  testator.  But  now 
that  all  debts  are  charged  on  land,  the 
existence  or  extent  of  a  general  charge 
in  the  will  seems  to  be  immaterial, 
except  as  an  element  in  reasoning  to 
the  intention  of  the  testator.  The 
error  of  any  argument,  which  sup- 
poses a  difference  between  the  right 
to  marshal  the  assets  as  against 
after-acquired  lauds,  and  those  held 


at  the  time  of  the  will,  seems  to  con- 
sist in  regarding  this  right  as  found- 
ed upon  a  charge  of  the  debts  on  the 
land,  whereas  that  is  only  the  means 
of  effecting  the  purpose  of  the  testa- 
tor, as  inferred  from  the  gift  of  a  de- 
vise or  legacy,  that  the  donee  should 
take  what  is  given  without  diminu- 
tion. And  the  general  principle 
that  after-acquired  lands,  are  to  be 
applied  in  furtherance  of  the  objects 
of  the  will  to  the  payment  of  all  debts 
for  which  they  are  legally  liable,  whe- 
ther charged  on  them  by  the  law  or 
the  testator,  is  fully  sustained  by  the 
case  of  the  Commonwealth  v.  Shelhi/, 
13  S.  &  R.  348.  Prima  facie  all  de- 
vises of  land,  whether  residuary  or  spe- 
cific, stand  on  the  same  footing,  and 
are  equally  liable  or  equally  exempt 
from  the  burden  of  contribution ;  and 
the  coui't  were  of  opinion  in  Shreve 
V.  Shreve,  2  Stockton,  285,  that  the 
rule  has  not  been  varied  as  it  regards 
land  held  at  the  time  when  the  will 
is  executed,  by  the  change,  which  has 
brought  after-acquired  land  within 
the  scope  of  a  prior  devise,  although 
they  seem  to  have  thought  that 
land  acquired  subsequently,  which 
could  not  have  been  present  to  the 
mind  of  the  testator  in  making  his 
will,  should,  perhaps,  be  appropri- 
ated to  the  payment  of  debts,  before 
resorting  to  that,  which  he  has  given 
specifically. 

It  has  already  been  stated,  that  the 
personal  estate  is  the  primary  fund  for 
the  payment  of  debts,  and  that  the 
mere  circumstance  that  they  are  also 
a  lien  upon  the  land,  will  not  exone- 
rate the  personalty  from  this  primary' 
liability.  A  devisee,  or  even  the  heir, 
is  therefore  entitled  to  have  the  per- 
sonal estate  applied  in  payment  of  a 


264 


MARSHALLING     ASSETS. 


mortgage  on  the  land  devised  or  de- 
scended ;  Torr's  Estate,  2  Rawle,  250 ; 
Mansdl's  Estate,  1  Parsons,  Eq.  367; 
unless  the  testator  has  manifested  a 
contrary  intention  by  bequeathing  it 
to  pecuniary  or  specific  legatees,  when 
their  equity  will  be  paramount  to  that 
of  the  heir  or  devisee ;  Hoff's  Appeal, 
12  Harris,  200;  3Iason's  Estate,  1 
Parsons,  Equity,  129 ;  EUiott  v.  Car- 
ter, 9  Grattan,  541,  549;  Goodhurn\. 
Stevens,  1  Maryland  Chancery,  420  ; 
ante,  volume  1,  p.  637.  But  when 
the  debt  does  not  grow  out  of  the 
personal  contract  of  the  testator,  and 
only  affects  him  as  being  a  charge  on 
the  land,  as  in  the  case  of  the  pur- 
chase of  land  subject  to  a  mortgage, 
there  is  no  legal  recourse  against  the 
personal  assets,  and  none  will  be 
afforded  in  equity;  Cumlerland  v. 
Codrington,  3  Johnson,  Ch.  229 ; 
In  Re  Taylor's  Estate,  8  Exche- 
quer, 384  ;  M'Learn  v.  M-Lellan, 
10  Peters,  625 ;  the  authority  of  the 
executor  being  limited  to  the  pay- 
ment of  the  testator's  debts,  and  not 
extending  to  the  debts  of  others, 
though  charged  on  the  land;  Key- 
set's Estate,  9  S.  &  E.  71. 

Under  such  circumstances,  there- 
fore, a  devisee  of  the  land  takes  it  cum 
onere,  and  can  neither  marshal  the 
assets  for  its  protection,  nor  call  upon 
other  devisees  not  subject  to  the  en- 
cumbrance, for  contribution  to  a  bur- 
den which  is  peculiar  to  the  gift  con- 
ferred on  himself;  Mason's  Estate,  1 
Parsons,  Eq.  129 ;  ante,  vol.  1,  p.  643, 
note  to  Ancaster  v.  Mayer.  On  these 
points  the  law  is  plain,  but,  a  more 
difficult  question  arises,  where  the 
testator  on  acquiring  land  charged 
with  a  mortgage  for  the  debt  of  ano- 
ther,   enters    into    engagements,    of 


which  the  effect  may  be  to  render 
him  personally,  and  not  merely  rela- 
tively, liable  for  the  payment  of  the 
mortgage.  Under  these  circumstan- 
ces, his  personal  assets  will  become 
liable  at  law,  but  the  debt  will  not  be 
regarded  by  equity,  as  transferred 
from  his  real  to  his  personal  estate, 
on  his  decease,  unless  the  tenor  of  his 
will,  or  of  the  obligations  into  which 
he  has  entered,  is  such  as  to  imply 
an  intention  to  render  himself  during 
his  life,  or  his  personal  representatives 
after  his  death,  primarily  liable,  and 
not  merely  in  aid  of  the  land ;  HaUey 
V.  Reed,  9  Paige,  446;  Mason's  Estate, 
1  Parsons,  Eq.  129.  The  rule  was  so 
held  in  the  able  opinion  delivered  by 
Chancellor  Kent,  in  Camherland  v. 
Codrington,  where  he  decided,  after 
an  elaborate  examination  of  the  Eng- 
lish authorities,  that  a  covenant  given 
by  a  vendee  to  indemnify  the  vendor 
against  a  mortgage  on  the  land  pur- 
chased, would  not  exonerate  the  heir 
at  the  expense  of  the  executor,  and 
expressed  a  strong  opinion  that  the 
result  would  have  been  the  same,  had 
the  engagement  been  directly  to  the 
mortgagee,  unless  it  appeared  to  have 
been  made  with  the  view  of  throwing 
the  burden  of  the  debt  primarily  on 
the  personalty,  and  freeing  the  laud. 
The  cases  of  Jloff's  Appeal,  12 
Harris,  200,  and  Thompson  v.  Thomj)- 
son,  4  Ohio,  N.  S.  333,  proceed  upon 
a  somewhat  different  principle,  and 
take  the  ground  that  the  personalty 
will  be  primarily  liable,  whenever  the 
testator  has  entered  into  an  express  or 
implied  engagement  to  save  the  mort- 
gagor harmless;  although  without 
making  himself  personally  liable  to 
the  mortgagee,  or  stipulating  in  any 
way  that  the  mortgage  shall  be  paid 


ALDRICH     V.     COOPER. 


265 


cut  of  his  personal  assets,  and  not  out 
of  the  land.  There  can  be  no  doubt 
that  whenever  a  mortgage,  made  by 
one  man  has  become  the  debt  of  ano- 
ther, it  should  be  paid  by  the  executors 
of  the  latter,  out  of  the  fund  primarily 
applicable  to  the  payment  of  debts; 
but  to  produce  this  result,  there  must 
be  something  more  than  a  purchase  of 
the  land  subject  to  the  mortgage, 
which  makes  the  land  primarily  liable, 
and  consequently  cannot  throw  the 
burden  on  the  personalty. 

It  has  also  been  decided,  that  fee- 
farm  or  ground  rents  charged  upon  or 
reserved  out  of  land,  are  primarily 
payable  by  the  heir  or  devisee,  even 
when  secured  by  the  personal  cove- 
nant of  the  ancestor  or  testator.  They 
cannot,  therefore,  be  thrown  on  the 
personal  assets,  to  the  prejudice  of 
creditors,  or  as  it  would  seem,  of  le- 
gatees or  even  distributees;  Torres 
Estate,  2  Eawle,  250. 

In  general,  a  devisee  of  land,  sub- 
ject to  a  mortgage,  will  take  the  bene- 
fit with  the  burden,  and  will  have  no 
right  to  subject  devises  of  other  land 
not  embraced  in  the  mortgage,  to  con- 
tribution, even  when  the  mortgage 
debt  was  incurred,  or  has  been  as- 
sumed by  the  testator,  unless  the  lat- 
ter has  manifested  a  different  inten- 
tion, by  charging  his  debts  generally, 
upon  the  land,  when  those  to  whom  it  is 
devised  must  meet  the  charge  by  an 
equal  contribution;  Elliot  v.  Carter, 
9  Grattan,  543. 

It  is  well  settled,  that  when  a  de- 
vise of  lauds  to  charitable  uses  is  pro- 
hibited by  law,  equity  will  not  sustain 
a  bequest  to  a  charity,  by  marshalling 
the  assets  so  as  to  throw  the  burden 
of  the  testator's  debts  on  the  land,  for 
this  would  be  contrary  to  the  spirit  of 


the  legal  prohibition ;  ante,  215.  Thus 
it  was  held  in  Wright  v.  The  Trustees 
of  the  Methodist  Episeopal  Church, 
Hoffman,  202,  216,  that  where  a  gift 
to  charitable  uses  is  good  as  to  person- 
alty, and  void  as  to  realty,  the  court 
will  not  cast  the  other  charges  on  the 
estate,  on  the  land  or  its  proceeds,  for 
the  purpose  of  appropriating  the  per- 
sonalty, to  the  satisfaction  of  the  be- 
quest to  the  charity.  And  it  seems, 
that  in  distributing  a  fund  produced 
by  the  sale  of  the  whole  of  the  testa- 
tor's estate,  under  a  power  for  the 
payment  of  debts  and  of  bequests  to 
charities,  the  surplus  remaining  after 
payment  of  the  debts,  will  be  con- 
sidered as  realty  or  personalty  in  the 
ratio  of  the  amounts  originally  arising 
from  each,  and  the  personalty  only 
applied  to  the  charitable  bequests. 

The  personal  estate  is,  in  general, 
the  primary  fund  for  the  payment  of 
legacies,  as  well  as  of  debts  ;  Reynolds 
v.  Reynolds,  2  Smith's  Court  of  Ap- 
peals, R.  257;  Harris  v.  Fly,  7  Paige, 
42 ;  Dugan  v.  Ilollins,  4  Maryland 
Ch.  139;  Stevens  v.  Gregg,  10  Gill  & 
Johnson,  143  ;  Cavjield  v.  Bostwick, 
21  Conn.  550 ;  and  hence,  it  will  not 
be  exonerated  by  a  mere  charge  on 
the  land,  unless  the  testator  also  ma- 
nifests an  intention  to  exonerate  the 
personalty;  Sims  v.  Sims,  2  Stockton, 
Ch.  158;  ante,  vol.  1,  p.  640.  Thus  in 
Canjield  v.  Bostwick,  21  Conn.  550, 
where  a  testator,  who  had  no  personal 
property,  gave  various  legacies,  and 
then  devised  all  the  residue  of  his  real 
estate,  the  court  held,  that  even  if  the 
legacies  were  charged  on  the  land,  it 
still  was  not  rendered  the  primary 
fund  for  their  payment,  and  could  not 
be  resorted  to  for  that  purpose,  in  pre- 
ference to  personalty  acquired  after 


2GG 


MARSHALLING     ASSETS. 


the  duto  of  the  will.  Every  such 
charge  is  2^'>'i^^<^  facie  contlitional, 
depending  for  its  effect  on  the  insuf- 
ficiency of  the  personal  property  left 
by  the  testator,  to  meet  and  satisfy 
his  bequests  ;  and  it  consequently  fol- 
lows, that  if  a  sufficient  amount  of 
personalty  be  left  for  the  payment  of 
legacies  charged  on  the  land,  the  land 
will  bo  exonerated,  and  cannot  be 
made  liable  by  a  subsequent  misap- 
propriation of  the  assets,  by  the  ex- 
ecutor; Sims  V.  Sims,  2  Stockton, 
Ch.  158. 

Pecuniary  legacies  have  a  preference 
over  those  which,  being  residuary,  are 
necessarily  limited  to  what  may  re- 
main after  all  other  demands  on  the 
estate  are  satisfied,  but  will,  in  their 
turn,  yield  to  specific  bequests  of  par- 
ticular parts  or  portions  of  the  tes- 
tator's personalty;  M'GlaugliUn  v. 
J/'  Glangldin,  12  Harris,  20;  although 
when  assets  are  wasted,  or  misappro- 
priated by  the  testator,  the  loss  will 
be  deemed  the  common  misfortune  of 
all  the  legatees,  and  will,  consequent- 
ly, as  it  would  seem,  be  apportioned 
equally  among  all,  without  regard  to 
the  nature  of  their  legacies ;  Di/ose 
V.  Di/ose,  1  P.  Wms.  305 ;  Strohm's 
Appeal,  11  Harris,  351.  The  result 
of  the  authorities  would,  therefore, 
seem  to  be,  that  when  legacies  are  not 
charged  on  the  land,  the  land  cannot 
be  made  liable  for  their  payment,  even 
in  the  event  of  an  entire  failure  of 
the  personalty ;  Dufjan  v.  Ilollins,  4 
Maryland  Ch.  139  ;  Stevens  \.  Grifff/, 
10  Gill  &  Johnson,  143;  Caiijidd 
V.  Bostwick,  21  Connecticut,  550 ; 
Rei/nolds  v.  Reynolds,  16  New  York 
Ilcports,  257 ;  and  that  when  they 
are,  they  must  still  be  paid  out  of 
that   portion   of  the   personal   assets, 


which  has  not  been  bequeathed,  or  is 
bequeathed  solely  by  way  of  residue, 
the  land  being  exempt,  until  all  other 
means  of  payment  are  exhausted; 
Canjicld  v.  BosiwicJc.  When,  how- 
ever, the  testator  evinces  a  design 
to  throw  debts  and  legacies  primari- 
ly on  the  realty,  effect  will  be  given 
to  his  intention,  and  any  deficiency 
in  the  personalty  made  good  at  the 
expense  of  the  land ;  Wallace  v.  Wal- 
lace, 3  Foster,  149 ;  not  by  marshal- 
ling the  assets,  but  by  enforcing  the 
trust  created  for  the  benefit  of  the  le- 
gatees; Mirelwuse  v.  Scai'/e,  2  Mylnc 
&  Keeue,  195. 

Although  a  charge  of  legacies  upon 
land,  will  not  render  the  land  the  pri- 
mary fund  for  their  payment,  nor  ex- 
onerate the  personalty,  it  will  still 
entitle  the  legatees  to  resort  to  the 
land,  if  the  personalty  be  exhausted, 
and  it  is  therefore  important,  to  de- 
termine by  what  words,  or  forms  of 
expression  such  a  charge  will,  or  may 
be  created.  The  question  is  admitted 
to  be  one  of  intention,  and  to  depend 
solely  on  the  meaning  or  purpose  of  the 
testator ;  Litjyfon  v.  Lupton,  2  John- 
son, Ch.  G18  ;  but  it  is  equally  well 
settled,  that  to  charge  land,  either 
with  debts  or  legacies,  the  intention 
must  be  apparent,  and  that  it  will  not 
be  implied  by  the  law,  unless  clearly 
evinced  by  the  testator;  Lupton  v.  Lup- 
ton, 2  Johnson,  Ch.  014;  Brandt's 
Appeal,  8  Watts,  198 ;  Stevens  v. 
Grigg,  10  Gill  &  Johnson,  143; 
Reynolds  V.  Reynolds,  16  New 
York  II.  257,  260 ;  although  it  may 
be  deduced  inferentially  from  the 
tenor  of  the  whole  will ;  Clyde  v. 
Simpson,  4  Ohio,  N.  S.  445,  455  ; 
English  V.  Jlarcey,  2  llawle,  305 ; 
when    not    stated    expressly    in    any 


ALDRICn     V.      COOPER. 


2G7 


part  of  it ;  Ripple  v.  Eipple,  1  Eawle, 
386;  Wallace  v.  Wallace,  3  Foster,  149. 
Thus,  a  devise  of  land,  "  after  the  pay- 
mentof  debts  and  legacies,"  or  coupled 
■with  a  direction,  ''that  debts  and  le- 
gacies be  first  paid,"  will  be  enough 
to  charge  the  land,  in  default  of  suffi- 
cient means  of  payment  out  of  the 
residual  or  undisposed  of  personalty ; 
Lupton  V.  Lnp)ton  ;    Wallace  v.   Wal- 
lace, 3  Foster,  149.     The  same  result 
will  follow,  whenever  a  devise  of  land  is 
coupled  with  a  direction,  or  is  upon 
condition  that  the  legacies  shall   be 
paid  by  the  devisee ;  Harris  v.  Fl^,  7 
Paige,  421 ;  Cl^de  v.  Simpson,  4  Ohio, 
N.  S.  445,  460  ;    Van  Winkle  v.  Van 
Honten,  2  Green,  Ch.  132;   Sicoojje's 
Appeal,  3  Casey,   58 ;    and    this,  as 
it  would  seem,  whether  the  devise  is 
to  the  executor  as  such,  or  to  a  third 
person,  the  only  difference  being,  that 
the  direction  to  pay  the  legacy  which 
must  be  express  in  the  latter  case,  will 
be  implied  in  the  former.     And  the 
weight  of  authority  would  seem  to  be, 
that  the  words  or  modes  of  expression, 
which  would  impose  a  charge  of  debts, 
will  be  equally  effectual,  when  lega- 
cies are  in  question  ;  Hill  on  Trustees, 
360 ;  although  this  has  been  denied, 
or  questioned  in  some  instances,  on 
the  ground  that  the  payment  of  debts 
may  be   presumed   to  spring  from  a 
sense  of  duty,  while  the  gift  of  a  lega- 
cy has  its  origin   in  mere  kindness, 
or  good  feeling;   Davis  v.  Gardner, 
2  P.  Wms.  187  ;  Ki<jhtlt/  v.  Kiijhdj/,  2 
Vesey,  jun.  328;  Kneeling  \.  Brown, 
5  Id.  362 ;  an  argument  which  would 
have  more  weight  in  the  determina- 
tion of  intention,  if  justice  invariably 
kept  pace  with  generosity,  and  men 
always  postponed  feeling  to  principle. 
But  there  can  be  little  doubt,  that 


the  extent  to  which  equity  has  gone 
in  England,  in  founding  a  charge  of 
debts  upon  slight  and  trivial  expres- 
sions, has  arisen  from  a  desire  to  im- 
pute an  intention  to  the  testator,  to 
do  the  justice  to  his  creditors  whicli 
the  law  could  not  have  done  without 
his  aid,  and  should  therefore  have  less 
weight  in  this  country,  where  lands 
are  assets  by  force  of  positive  law,  and 
where  there  is  consequently  no  need 
of  seeking  a  specific  authority  in  the 
will ;  Chjde  v.  Simjjson,  4  Ohio,  N.  S. 
445.     "  By  the  common  law,"  said 
Rainy,  J.,  in  delivering  the  opinion  of 
the  court  in  Clyde  v.  Simpson,  "  the 
real  estate  of  the  deceased  debtor  could 
never  be  reached  by  his  simple  con- 
tract-creditors.    The  courts  very  early 
felt  the  injustice  of  this  rule,  and  to 
counteract  its  effect,  where  there  was 
a  deficiency  of  personal  assets,  seized 
upon  the  slightest  indication   of  in- 
tention in  the  will  of  the  testator  to 
charge  such  debts   upon  the   realty. 
In  giving  effect  to  this  policy,  it  was 
at  first  thought  to  be  necessary,  that 
the  testator  should,  before  devising 
the  lands  sought  to  be  charged,  have 
directed  his  debts  to  be  first  paid,  or 
paid  out  of  his  estate  ;  or  some  equi- 
valent expression,  to  evince  an  inten- 
tion not  to  give  anything  until   his 
debts  were  paid.     But  even  this  re- 
striction was  very  soon   disregarded, 
and  such  introductory  words  held  to 
be  unnecessary  :    and  in    Graves   v. 
Graves,  8  Simons,  55,  Sir  L.  Shad- 
well  lays  down  the  doctrine  broadly, 
that  wherever  the  testator,  in  any  part 
of  the  will,  directs  his  debts  to  be 
paid,  it  is,  in  effect,  a  direction  that 
they  shall  be  paid  in  the  first  instance; 
and,  in  case  of  a  deficiency  of  per- 
sonal   property,   charges    them   upon 


268 


MARSHALLING     ASSETS. 


the  realty.  This  decision  was  follow- 
ed in  several  later  cases ;  and  3Ir. 
Jarmau,  (2  Jarm.  on  "Wills,  519,) 
correctly  states  the  established  doc- 
trine to  be,  that  '  a  general  direction 
to  pay  debts  in  whatever  part  of  the 
will  contained,  operates  to  throw  them 
on  the  testator's  real  estate.'  The 
better  opinion  is,  that  it  operates  not 
only  against  a  devisee  of  the  land,  but 
also  against  the  heir,  and  where  the 
will  is  confined  to  a  disposition  of  the 
personal  estate.  Sir  E..  P.  Arden,in 
ShriUcrosti  v.  Finden,  3  Vesey,  739, 
said  he  was  '  very  clearly  of  opinion, 
that  whenever  a  testator  says  that  his 
debts  shall  be  paid,  that  will  ride  over 
every  disposition,  either  against  his 
heir-at-law,  or  devisee.' 

''And  although  the  rule  is  subject 
to  an  established  exception,  where  the 
testator  has  provided  a  specific  fund 
for  the  payment  of  debts,  yet  this  ex- 
ception is  confined  within  so  nai-row 
limits,  that  Lord  Chancellor  Lynd- 
hurst,  in  Price  v.  North,  1  Turn.  & 
Phill.  85,  where  the  testator  had  ex- 
pressly bequeathed  the  residue  of  his 
personal  estate,  subject  to  the  pay- 
ment of  debts  and  legacies,  held  the 
real  estate  charged  as  an  auxiliary 
fund;  observing  that  courts  of  equi- 
ty had  always  been  desirous  of  sus- 
taining such  charges  for  the  benefit 
of  creditors,  and  that  the  presump- 
tion in  their  favor  was  not  to  be  re- 
pelled by  anything  short  of  a  clear 
and  manifest  intention  to  the  contrary. 
Now,  while  this  whole  course  of  de- 
cision is  professedly  based  upon  the 
intention  of  the  testator,  as  derived 
from  the  language  of  the  will,  it  is 
impossible  not  to  see  that  the  anxiety 
of  the  courts  '  to  prevent  men  from 
sinning  in    their  graves,'  by  leaving 


their  debts  unpaid,  or  for  a  more  sub- 
stantial reason,  to  prevent  injustice  to 
living  creditors,  has  largely  contri- 
buted to  produce  it,  and  that  in  very 
many  cases,  they  have  compelled  the 
testator  to  do  an  act  of  justice,  which 
he  had  very  little  thought  himself  of 
doing.  In  this  state,  where  all  debts 
constitute  a  paramount  lieu  upon  all 
the  property  of  the  testator,  the  direct 
question  could  never  arise;  and  as 
none  of  the  considerations  which  have 
influenced  these  decisions  can  have 
any  application  to  the  question,  whe- 
ther pecuniary  legacies  should  be 
charged  upon  real  property  devised, 
it  is  evident  that  these  decisions 
would  furnish  very  unsafe  guides. 
The  distinction  has  been  taken  by  the 
English  courts;  Lord  Macclesfield, 
(in  Davis  v.  Gardner,  2  P.  Wms. 
187,)  observing,  in  relation  to  lands 
descended,  that  '  as  plain  words  are 
necessary  to  disinherit  an  heir,  so 
words  equally  plain  are  requisite  to 
charge  the  estate  of  an  heir,  which  is 
a  disinherison  jj^-o  tanto ;'  and  in 
JShaUcross  v.  Finden,  supra,  there  is 
said  to  be  '  no  reason  why  a  specific 
.devise  should  not  take  effect  as  well 
as  a  pecuniary  one.'  The  fact  is,  that, 
after  a  considerable  struggle  to  escape 
the  imputation  of  inconsistency,  it  is 
pretty  well  settled,  that  a  clearer  ma- 
nifestation of  intention  is  re(juisite  to 
charge  the  realty  with  pecuniary  le- 
gacies than  with  debts ;  and  the  de- 
cided weight  of  authority  there,  as 
well  as  the  undivided  opinion  in  this 
country,  is,  that  where  it  is  not  ex- 
pressly done,  the  implication  must  be 
plainly  and  clearly  dcducible,  from  the 
language  of  the  will,  to  have  that  ef- 
fect. As  is  said  by  Mr.  Jarmau, 
'  this  distinction  appears  to  have  been 


ALDRICH     V.     COOPER. 


269 


a  natural  consequence  of  the  extreme 
length  which  the  courts  had  gone,  in 
holding  debts  to  be  charged  by  loose 
and  equivocal  expressions  ;'  2  Jarman 
on  Wills,  531.  In  principle  there  is 
little  room  for  doubt  upon  this  sub- 
ject. 

"■  There  may  be  much  force  in  as- 
cribing to  a  testator  the  intention  to 
pay  his  debts  before  he  gives  away 
any  of  his  property — of  being  just 
before  he  is  generous — but,  as  be- 
tween the  mere  objects  of  his  bounty, 
where  he  has  given  a  pecuniary  lega- 
cy, resting  upon  and  payable  from  the 
personal  fund,  to  one,  and  devised  real 
estate  to  another,  and  the  personal 
fund  proves  insufficient,  there  can  be 
no  reason  for  disappointing  the  devi- 
see rather  than  the  legatee,  or  for 
shifting  the  loss  from  him  upon  whom 
the  law  has  cast  it,  upon  one  that  the 
law  does  not  affect,  until  it  is  made 
unmistakably  to  appear  that  the  tes- 
tator so  intended.  Without  such 
clear  manifestation  of  intention,  there 
is  great  danger  of  interfering  with  his 
wishes;  and  to  derive  it  by  implica- 
tion, the  language  of  the  will  ought 
to  be  so  explicit  as  to  leave  no  doubt 
in  the  mind  of  the  court,  that  the  tes- 
tator actually  contemplated  such  a 
contingency,  and  intended  to  provide 
against  it. 

''  In  all  such  cases  the  question  is, 
whether  the  estate  devised  shall  bear 
a  burden  that  the  testator  has  not  im- 
posed upon  the  devisee ;  and  the  con- 
troversy always  relates  to  the  existence 
or  non-existence  of  the  obligation.  To 
this  class  properly  belongs  the  case  of 
Lupfon  V.  Lupton,  2  Johns.  Ch.  Rep. 
614." 

However  this  may  be,  it  is  said  to 
be  well  settled  in  England,  that  when 


"a  testator  gives  several  legacies,  and 
then,  without  creating  any  express 
trust  for  their  payment,  makes  a  gen- 
eral residuary  disposition  of  the  whole 
estate,  blending  the  realty  and  pei-- 
sonalty  together  in  one  fund,  the  real 
estate  will  be  charged  with  the  lega- 
cies ;  for  in  such  a  case  the  '  resi- 
due' can  only  mean  what  remains 
after  satisfying  the  previous  gifts;" 
Hill  on  Trustees,  360  ;  Mlreliouse  v. 
Scaife,  3  Mylne  &  Craig,  690.  And 
the  general  principle  that  blending 
the  realty  and  personalty  in  a  gene- 
ral residuary  bequest,  denotes  an  in- 
tention to  charge  the  realty  with  the 
burden  of  legacies,  and  thus,  in  ef- 
fect, renders  it  the  primary  fund  for 
the  payment  of  debts,  as  between  the 
residuary  devisee  and  prior  legatees, 
and,  so  far  as  may  be  necessary  for 
their  protection,  may,  perhaps,  be  said 
to  be  established  in  this  country; 
Lewis  V.  Darling,  16  Howard,  60 ; 
M'  Glaughlin  v.  M'  Glaughlin,  12  Har- 
ris, 20 ;  Bncldey  v.  BucJdey,  11  Barb. 
43 ;  Carter  v.  Balfour,  19  Alabama, 
815  ;  Derhy  v.  Derhy,  4  Ehode  Is- 
land, 414,  431 ;  Clyde  v.  Simpson, 
4  Ohio,  N.  S.  445,  459 ;  although  the 
cases  differ  widely  as  to  the  nature 
and  extent  of  the  presumption,  and  as 
to  when  and  how  far  it  should  be  held 
conclusive.  In  Kicliols  v.  Postle- 
iliwaite,2  Dallas,  131;  Hassenclever 
v.  TucJcer,  2  Binney,  525  ;  Witman  v. 
Norton,  6  Binney,  395  ;  3I'Lanahan 
V.  Wynant,  1  Penna.  R.  Ill ;  Doicn- 
man  v.  Bust,  6  Rand.  587;  and  more 
recently  in  J/'  Gkutghliii  v.  M'  Glaugh- 
lin ;  Lewis  V.  Darling;  Adams  v. 
Brachett,  5  Metcalf,  289 ;  Wallace  v. 
^Vallace,  3  Foster,  149;  Tracy  v. 
Tracy,  15  Barbour,  503,  ViXx^Rafferty 
V.  Clarl-e,  1  Bradford,  473,  blending 


270 


MARSHALLING     ASSETS. 


the  personalty  and  realty  in  a  residu- 
ary bequest,  was  treated  as  suffi- 
cient to  charge  the  realty  with  the 
burden  of  prior  gifts  of  personalty, 
without  the  aid  of  other  circumstan- 
ces, and  by  the  mere  force  of  the  as- 
sociation of  both  in  one  donation,  and 
the  consequent  inference  that  the 
language  employed  had  the  same 
meaning  with  regard  to  the  real  es- 
tate, which  it  undoubtedly  had  so  far 
as  the  personal  estate  was  in  question. 
On  the  other  hand,  the  case  of  Pax- 
son  V.  Potts,  2  Green,  Ch.  313,  de- 
cides, that,  to  justify  this  presump- 
tion, the  residuary  gift  must  embrace 
all  the  real  estate,  and  that  it  will  not 
arise  when  the  testator  gives  away 
part  of  his  real  and  personal  property, 
and  then  goes  on  to  devise  the  rest 
and  residue,  because  he  may  well 
mean  the  residue  of  the  land  after 
or  independently  of  what  has  been 
already  devised,  and  the  residue  of  the 
personalty  after  and  independently  of 
the  prior  gifts  of  personalty.  In  Rey- 
nolds V.  Reijnolds,  16  Xew  York  R. 
257,  the  rule  was  said  to  be  inappli- 
cable, unless  the  devise  is  residuary  in 
terms  as  well  as  in  fact;  and  a  gift  of 
<'  all  and  singular  my  real  and  personal 
estate,  of  what  nature  or  kind  what- 
soever," held  not  to  burden  the  land 
with  prior  legacies,  notwithstanding 
the  argument  that  a  testator  who  has 
given  away  part,  must  mean  the  resi- 
due in  speaking  of  the  rest,  even 
when  he  uses  other  forms  of  expres- 
sion, and  the  case  was  said  not  to 
be  varied  by  the  fact  that  the  de- 
visees were  also  named  as  executors. 
In  Van  Winkle  v.  Van  ITouten,  2 
Green,  Ch.  172,  the  union  of  real 
and  personal  property  in  a  residu- 
ary gift,  was  said  to  be  some  ground 


for  inferring  that  the  donee  was  to 
have  only  so  much  as  might  be  left 
of  both,  after  the  deduction  of  what 
had  been  already  given  to  other  per- 
sons, in  the  shape  either  of  land  or 
money,  but  nut  to  be  sufficient  to 
warrant  this  conclusion,  or  rebut  the 
natural  presumption,  that  bequests  of 
personalty  are  to  come  solely  out  of 
what  is  personal,  unless  there  is  some- 
thing further  in  the  will  to  show  that 
the  testator's  purpose  is  to  charge  the 
laud,  should  the  personal  estate  prove 
insufficient :  while  the  cases  of  Swift 
V.  Edson,  5  Conn.  531 ;  Gridly  v.  An- 
drews, 8  Conn.  1;  Liipton  v.  Lupton, 
2  Johnson,  Ch.  618,  and  Stevens  v. 
Grifffj,  10  Gill  &  J.  143,  go  still 
further,  and  negative  the  idea  that 
blending  real  and  personal  property 
in  a  residuary  devise,  will  place  the 
land  on  a  different  footing,  from  that 
on  which  it  would  stand  if  alone. 
But  all  the  authorities  agree,  that  the 
question  is  one  of  intention,  the  only 
difference  being  as  to  the  proper  con- 
struction to  be  put  on  language  as 
evidence  of  intention ;  and  most  of  the 
cases  may  be  reconciled  by  attending 
to  the  distinction  taken  in  Paxson 
V.  Potts,  between  those  instances  in 
which  the  whole  of  the  laud  is  spoken 
of  as  the  residue,  and  those  in  which 
that  phrase  is  used  with  regard  to 
what  is  left  after  the  gift  of  specific 
devises.  In  Ilassenclever  v.  Tucker, 
2  Binney,  525,  and  Lewis  v.  Darling, 
16  Howard,  110,  however,  a  rever- 
sionary devise  of  all  the  rest  and  resi- 
due of  the  testator's  real  and  personal 
property,  was  held  to  mean  what 
might  be  left  after  the  payment  of 
prior  legacies  of  personalty,  notwith- 
standing the  existence  of  prior  specific 
devises  of  the  land ;  while  in  Stevens 


ALDRICH     V.     COOPER. 


271 


V.  Grigg,  the  court  refused  to  put  this 
interpretation  on  a  residuary  bequest, 
"which  disposed  of  the  whole  of  the 
land,  in  conjunction  with  the  residue 
of  the  personal  property.  The  point 
decided  in  Paxson  v.  Potts,  was  not, 
however,  made  in  any  of  these  in- 
stances, and  may,  therefore,  be  con- 
sidered as  still  open  for  adjudication. 
It  is  proper  to  add,  that  a  residuary 
devise  of  land,  cannot  be  charged  with 
the  burden  of  legacies,  merely  because 
it  is  found  in  the  same  clause  or  para- 
graph with  a  residuary  gift  of  per- 
sonal property,  unless  both  are  blend- 
ed in  one  bequest  or  donation,  so  as 
to  warrant  the  inference  that  the  word 
residue  is  used  in  the  same  sense  with 
reference  to  both;  Adams  \.  Brackett, 
5  Metcalf,  280.  And  it  has  beeu 
said  to  be  doubtful,  whether  a  devise 
of  "  all  the  residue  of  my  real  estate,'' 
will  render  prior  legacies  a  charge  on 
the  land,  even  when  the  will  contains 
^no  specific  or  particular  gift  of  the 
realty,  and  the  testator  has  no  per- 
sonal property  at  the  time  when  the 
will  is  .made ;  CanfieJd  v.  Bostwick, 
,  21  Conn.  550. 

'  Marshalling  assets  as  against  cre- 
ditors in  default. — It  is  a  necessary 
consequence  of  the  principles  already 
stated,  (^ante,  220,)  that  when  a  credi- 
tor, who  has  a  right  of  recourse  against 
two  different  funds,  has  acted  in  such 
a  manner  as  to  put  one  of  them  be- 
yond his  own  reach,  with  full  know- 
f  ledge  that  his  debt  cannot  be  satisfied 

out  of  the  other  fund,  without  injury 
to  the  interests  of  third  persons,  he 
will  be  held  to  have  forfeited  his  right 
to  the  second,  by  the  abandonment  of 
the  first.  This  is  so  held  on  a  gene- 
ral principle  of  equity,  that  he  who 
has  wilfully  occasioned  a  loss,  ought 


to  bear  it,  and  not  throw  the  conse- 
quences of  his  own  wrong  upon  the 
shoulders  of  others.  "  An  act  which 
is  perfectly  innocent  and  legal  in  it- 
self, may  become  improper,  if  the 
party  has  notice  that  the  rights  of 
third  persons  may  be  impaired  by  it. 
As  if  a  covenantor  or  releasor  is  ap- 
prised beforehand,  that  a  portion  of 
the  land  is  bound  by  a  subsequent 
mortgage  in  favor  of  another  person, 
and  that  if  he  discharges  a  different 
portion,  and  reserves  his  lien  against 
the  part  bound  by  such  mortgage, 
thus  loading  it  with  a  double  burden, 
the  claim  of  the  mortgagee  will  be 
sacrificed  by  his  priority.  It  is  mani- 
fest that  it  is  unfair  and  inequitable, 
that  he  should  voluntarily  do  an  act 
producing  these  consequences.  Sic 
utere  tuo  ut  alienum  non  Icedas.  Thus 
in  an  analogous  case :  A  person  may 
buy  a  legal  title  free  from  all  secret 
trusts  :  but  if  he  has  notice  of  a  trust, 
though  he  may  have  paid  his  money, 
equity  will  make  him  the  trustee  for 
the  party  beneficially  interested."  Per 
Sergeant,  J.,  Taylor's  Exors  v.  Ma- 
ris, 5  Rawle,  51.     Thus  it  was  decided 

,  in  Stevens  v.  Cooper,  1  Johnson,  Ch. 
425,  that  where  lots  of  ground  bound 
by  the  same  mortgage,  were  sold  to 

/  different  purchasers,  a  release  of  one 
of  the  lots  was  a  discharge  pro  tanto 
of  the  others,  for  the  mortgagee  could 
neither  be  entitled  to  throw  the  bur- 
den of  the  whole  debt  finally  on  one 
of  the  purchasers,  nor  to  render  the 
other  liable  to  a  suit  for  contribution 
to  the  payment  of  a  debt,  from  which 
he  had  been  released.  This  case  was 
followed  in  Guion  v.  Knapj),  G  Paige, 
35;;  The  Howard  Insurance  Company 
x.lITalsey,  4  Sandford,  S.  C.  565;  4  Sel- 
d^n,  271,  and  Johnson  v.  Cooper,  8 


272 


MARSHALLING     ASSETS. 


Greeuleaf,  107,  aud  by  tlie  Supreme 
Court  of  Pennsylvauia,  in  Paxton  v. 
Harrier,  1  Jones,  312,  where  it  was 
decided  that  a  mortgagee  cannot  en- 
force his  mortgage  against  a  purchaser 
of  part  of  the  mortgaged  premises, 
after  having  released  a  subsequent 
purchaser  of  the  residue.  It  is  well 
settled  in  accordance  with  this  view, 
that  when  land  is  purchased  subject 
to  a  mortgage,  the  mortgage  must  be 
satisfied  out  of  the  land,  and  not  out 
of  the  personal  estate  of  the  purchaser, 
although  he  may  have  entered  into  an 
express  or  implied  covenant  to  indem- 
nify the  vendor,  and  that  the  latter 
will  not  be  allowed  to  charge  the  per- 
sonalty by  paying  off  the  mortgage, 
and  suing  the  executor,  instead  of  en- 
forcing it  against  the  land,  ante,\o\.  1, 
p.  C4o,  note  to  Ancasfer  v.  Mayer. 
And  the  general  principle,  that  an  en- 
cumbrancer shall  not  vary  the  rights 
of  the  owners  of  the  land  encum- 
bered, as  between  themselves,  and 
that  if  he  does  so,  the  loss  will  be 
thrown  upon  him,  was  adopted  by 
the  Supreme  Court  of  Massachusetts, 
in  Pdrhman  v.  ^Ylhon,  19  Pick. 
231.  The  doctrine  may  extend  be- 
yond real  estate,  to  other  species  of 
property,  whenever  the  circumstances 
are  such  as  bring  them  within  its  ope- 
ration ;  and  in  Berry  \.  The  Church,  7 
Maryland,  564,  a  vendee  who  had 
agreed  to  pay  the  purchase-money 
in  two  successive  instalments,  was 
held  to  be  precluded  from  making  an 
e(juitable  set-off,  which  would  other- 
wise have  been  available,  by  paying 
the  second  instalment,  with  full  notice 
of  the  assignment  of  the  first^  and  of 
the  consequent  obligation  not  to  pur- 
sue any  course  which  would  be  need- 
lessly prejudical  to  the  assignee. 


But  in  order  to  expose  a  mortgagee, 
or  other  encumbrancer,  to  a  forfeiture 
so  highly  penal  in  its  nature,  it  must 
appear  clearly  that  he  had  notice  of 
the  circumstances,  rendering  it  ine- 
quitable for, him  to  deal  with  his  own 
security,  in  the  manner  best  suited  to 
his  own  pleasure  or  interest.  The 
law  was  so  held  in  ChecsehorongJi  v. 
^lillard,  1  Juhnson,  Ch,  409;  and 
more  recently  in  Guion  v.  Knapp,  6 
Paige,  35  ;  Patty  v.  Pease,  8  Id.  277 ; 
Bledr  V.  Ward,  3  Stockton,  Ch.  119; 
The  Hoicarcl  Ins.  Co.  v.  Kelsey,  4 
Sandford,  S.  C.  R.  505 ;  4  Selden,  271 ; 
and  Stuyvesfint  v.  Hone,  1  Sandford, 
Ch.  419.  Constructive  notice  has, 
however,  been  held  as  effectual  for 
this  purpose  as  actual.  Thus  in  Guion 
V.  Knapj),  the  recitals  in  an  instru- 
ment which  the  mortgagee  had  taken 
as  additional  security,  were  held  con- 
clusive evidence  of  notice;  while 
the  same  inference  was  drawn  in  The 
Hoicard  Ins.  Co.  v.  Halsey,  from  a 
recital  in  a  release,  by  which  one  lot 
was  discharged  to  the  prejudice  of 
another,  describing  the  former  as 
bounded  by  land  belonging  to  tlie 
owner  of  the  latter,  and  thus  evincing 
a  knowledge  of  his  title.  And  there 
can  be  no  doubt  that  the  possession  of 
patt  of  a  tract  of  land,  under  a  contract 
of  sale,  will  be  notice  of  the  right  of  the 
purchaser,  to  a  subsequent  mortgagee 
of  the  whole,  and  preclude  the  latter 
from  releasing  to  the  injury  of  the  pur- 
chaser; although  the  purchase-money 
is  not  paid  until  after  the  execution  of 
the  mortgage;  Govemeur  v.  Lynch, 
2  Paige,  500.  It  must  however  be 
remembered,  that  to  make  possession 
notice,  it  must  be  contemporaneous, 
and  that  although  a  mortgagee  ought 
to  make  himself  acquainted  with  the 


ALDRICn     V.     COOPER. 


273 


condition  of  the  premises  at  the  time 
when  the  mortgage  is  executed,  yet 
he  is  not  bound  to  carry  his  search  for 
information  beyond  this  point,  nor  to 
ascertain  who  is  in  possession,  before 
executing  a  partial  release,  upon  re- 
ceiving a  part  payment  of  the  mort- 
gage. 

All  the  authorities  agree,  that  the 
registration  of  a  subsequent  convey- 
ance of  part  of  the  premises  covered 
by  a  mortgage,  is  not  notice  to  the 
mortgagee,  and  will  not  render  a  re- 
lease of  the  residue  a  discharge  of  the 
purchaser ;  Taijlor's  Ex'ors  v.  Maris, 
5  Kawle,  51 ;  Stuyvesant  v.  Hone,  1 
Sandford,  Ch.  419;  2  Barbour,  Ch. 
137 ;  Blair  v.  Ward,  2  Stockton,  Ch. 
119.  A  subsequent  possession  obvious- 
ly cannot  have  any  greater  eifect  than 
a  subsequent  registry.  And  it  may 
be  doubted,  whether  the  doctrine  of 
constructive  notice  should  not  be  con- 
fined to  the  support  of  antecedent  es- 
tates and  equities,  and  whether  it 
should  ever  be  applied  for  the  purpose 
of  affecting  the  exercise  of  vested 
rights  with  the  consequences  of  wrong. 

In  Cheesehorougli  v.  Millard,  Chan- 
cellor Kent  held  the  following  lan- 
guage, "  If  the  judgment-creditor  had 
given  notice  to  the  owner  of  the  first 
mortgage,  before  the  arrangement  and 
discharge  took  place  of  the  equity 
which  he  claimed  and  expected,  I 
might  probably  have  been  inclined  to 
have  stayed  to  a  certain  extent  the 
operation  of  the  second  mortgage. 
But  there  is  no  evidence,  nor  even 
ground  for  presumption,  that  either 
Marvin  or  Millard,  the  owners  of  the 
mortgages,  knew  of  the  existence  of 
the  judgment  when  the  arrangement 
was  made  and  carried  into  effect. 

''They  were  not  bound  to  search  for 

VOL.  II. — 18 


the  judgment,  and  the  record  was  no 
constructive  notice  to  them :  and  as 
the  rule  of  substitution  rests  on  the 
basis  of  mere  equity  and  benevolence, 
the  creditor  who  has  thus  disabled 
himself  from  making  it,  is  not  to  be 
injured  thereby,  provided  he  acted 
without  knowledge  of  the  other's 
rights,  and  with  good  faith  and  good 
intention,  which  is  all  that  equity  in 
such  case  requires.  (Pothier's  Traite 
des  Oblig.,  No.  620.)  'The  other 
debtors  and  sureties,'  to  adopt  the 
observations  of  Pothier,  'might,  as 
well  as  the  creditor,  have  taken  care 
of  the  right  of  hypothecation  which 
he  has  lost ;  they  might  summon  him 
to  interrupt  at  their  risk,  the  third 
purchasers,  or  to  oppose  the  decrees. 
It  is  only  in  the  case  in  which  they 
may  have  put  the  creditor  in  default, 
that  they  may  complain  that  he  has 
lost  his  hypothecation.'  "  The  tenor 
of  these  remarks,  and  of  the  citation 
from  Pothier,  would  seem  to  imply 
that  there  must  be  an  actual  warning 
on  the  part  of  the  first  purchaser,  to 
charge  a  prior  encumbrancer  with  a  de- 
fault, in  releasing  the  land  bought  by 
the  second ;  -B/atrv.  TTarcZ,  2  Stockton, 
Ch.  119,  126.  And  the  law  seems  to 
have  been  so  understood  by  the  Su- 
preme Court  of  Pennsylvania,  in  the 
case  of  Taylor's  Ex'ors  v.  Maris,  o 
Rawle,  51,  where  it  was  held  that  to 
protect  the  purchaser,  he  must  give 
notice  of  the  purchase  to  the  encum- 
brancer, and  desire  him  to  retain  his 
lien  on  the  rest  of  the  property. 

In  The  Hoioard  Ins.  Co.  v.  Ilalsey, 
4  Sandford,  S.  C.  565;  4  Selden,  271, 
a  release  by  the  mortgagee  of  part  of 
the  land  mortgaged,  which  spoke  of 
the  residue  as  the  property  of  a  third 
person,  was   held  sufficient  to  show 


274 


MARSHALLING     ASSETS. 


that  the  mortgagee  had  notice  of  a 
prior  conveyance  to  the  hitter,  and  of 
his  consequent  right  to  throw  the 
whole  burden  of  the  mortgage,  on  that 
portion  which  was  exonerated  by  the 
release.  It  would,  however,  seem 
very  doubtful  whether  the  language 
used  in  a  release  or  grant,  with  re- 
ference to  land  adjacent  to  that  re- 
leased or  granted;  and  for  the  pur- 
pose of  specifying  or  designating  the 
latter,  should  be  viewed  as  evidence 
of  the  knowledge  of  the  releasor  or 
o-rantor,  or  as  evincing  anything  more 
than  the  impressions  of  the  convey- 
ancer employed  to  draw  the  instru- 
ment, who  can  hardly  be  considered 
as  within  the  rule  which  makes  the 
knowledge  of  the  agent  notice  to  the 
principal ;  ante,  164. 

The  doctrine  that  a  creditor  will 
not  be  allowed  to  enforce  a  debt,  M^hen 
be  has  acted  in  such  a  manner  as  to 
deprive  the  party  against  whom  he 
seeks  to  enforce  it,  of  any  means  of 
indemnity,  to  which  he  is  legitimately 
entitled,  applies  with  full  force,  in 
cases  arising  between  principal  and 
surety.  Thus,  if  the  creditor  vitiate 
any  of  the  securities  taken  for  the 
debt,  by  fraud  or  usury,  at  the  time 
when  they  are  taken  ;  Hayes  v.  Ward, 
4  Johnson,  Ch.  123  ;  or  if  by  positive 
misfeasance,  or  gross  negligence,  he 
render  them  unavailable  afterward; 
Capcl  V.  Butler,  2  Sim.  &  Stu.  457; 
Ex  parte  Mure,  1  Coxe,  Go  ;  Bnker  v. 
BrvjiP,  8  Pick.  122;  The  Farmers' 
Banh  of  Canton  v.  Reynolds,Vi  Ohio, 
84;  Baher  v.  Fordyce,  9  Barr,  275  ; 
Curan  v.  Colbert,  3  Georgia,  23i),  he 
will  be  precluded  from  a  recovery 
against  the  surety,  to  the  full  extent 
of  the  injury  sustained  by  the  latter. 
This  doctrine  is  a  mere  application  of 


(the  general  principle  on  which  equity 
marshals  assets,  that  every  fund  or 
security  shall  be  so  held  and  applied, 
as  to  promote  the  purposes  of  justice 
among  all  the  parties  interested  in  its 
application,  and  that  the  loss  produced 
by  a  wilful  deviation  from  this  rule, 
shall  be  thrown  on  the  party  whose 
default  has  occasioned  it;  post,  note 
to  Rees  V.  Berrington.  The  rule  is 
more  frequently  called  into  operation 
for  the  protection  of  sureties,  than  for 
that  of  principal  debtors  or  contract- 
ors, but  applies  in  every  instance 
where  one  man  is  invested  with  the 
control  over  a  fund  or  security,  in  which 
another  is  interested,  and  which  ought 
to  be  applied  to  the  liquidation  or  dis- 
charge of  a  debt  due  by  the  latter,  or 
in  any  way  chargeable  upon  his  pro- 
perty or  person.  Under  these  cir- 
cumstances, the  power  thus  possessed 
must  be  so  used  as  to  subserve  its  le- 
gitimate purposes,  and  any  wrong  done 
in  its  exercise,  will  be  at  the  risk  of 
the  wrong  doer;  Holt  v.  Body,  G 
Harris,  2U7.  It  follows  that,  when- 
ever payment  would  give  the  debtor 
a  right  to  the  use  or  possession  of  a 
fund,  or  security  held  by  the  credi- 
tor, any  act  or  default  by  which  this 
right  i&  impaired  or  violated,  will  ope- 
rate as  an  entire  or  partial  discharge 
of  the  debt;  2  American  Leading 
Cases,  350,4th  ed.  In  other  words,  tlie 
right  of  discharge  or  exoneration,  is  a 
corollary  to  that  of  subrogation,  and 
whatever  defeats  the  one  will  give 
force  and  effect  to  the  other. 

Hence'a  creditor  who  allows  a  fund 
to  pass  from  his  hands,  or  be  paid 
away  by  the  sheriff,  under  circum- 
stances wliich  make  it  a  duty  to  keep 
or  receive  it  in  payment  of  a  debt  to 
which  it  is  primarily  liable,  will  be 


A.LDRICH     V.     COOPER. 


275 


precluded  from  proceeding  against 
those  wliose  liability  for  the  debt  is 
secondary,  and  who  would,  conse- 
quently, have  been  discharged  from 
all  further  obligation,  had  the  fund 
been  appropriated  to  its  legitimate 
purposes ;  Ramsay  v.  The  Westmore- 
land Bank,  2  Penna.  R.  203 ;  Jones 
V.  Mjrkk's  Ex'ors,  8  Grattan,  179; 
Lichtenthaler  v.  Thompson,  13  S.  & 
R.  157 ;  Baker  v.  Briygs,  8  Picker- 
ing, 122. 

Nor,  as  it  would  seem,  will  it  make 
any  matter,  whether  the  default  by 
which  the  rights  or  remedies  of  the 
debtor  have  been  lost  or  extinguished,^ 
consist  in  a  positive  act,  or  in  a  mere 
neglect  or  omission,  the  only  question 
being  whether  a  wrong  has  been  done 
on  one  side,  and  whether  it  has  re- 
sulted in  an  injury  on  the  other.  All 
the  securities  in  the  hands  of  a  credi- 
tor, are  held  by  him  for  the  benefit  of 
those  who  are  responsible  for  the  debt, 
as  well  as  for  his  own,  and  his  liability 
rises  as  high  as,  if  not  higher  than  that 
of  ordinary  bailees,  who  are  entrusted 
with  the  safe  keeping  of  property  in 
which  others  are  interested.  It  has 
accordingly  been  held,  in  a  number 
of  instances,  that  any  loss  arising  by 
a  failure  to  record  a  mortgage,  bill  of 
sale,  or  other  instrument  given  as  a 
security  for  a  debt,  by  which  its  lien 
is  lost,  or  it  is  rendered  in  other  re- 
spects unavailable,  should  be  thrown 
upon  him  whose  negligence  has  occa- 
sioned it,  in  exoneration  of  those  upon 
whom  it  would  otherwise  fall ;  Col- 
Ungwood  v.  Irivm,  3  Watts,  306 ; 
Muirhead  v.  Kirhpatrichy  9  Harris, 
237 ;  Slevin  v.  Morrow,  4  Indiana, 
425;  Russell  \.  Hester,  10  Ala.  53G  ; 
Capel  V.  Butler,  2  Simons  &  Stu. 
457 ;  ^Yatson  v.  Alcock,  19  Eng.  Law 


&  Eq.  04,  239.  Thus,  where  land 
which  had  been  mortgaged  to  one 
man,  was  subsequently  sold,  and  an- 
other mortgage  given  on  other  land, 
with  an  understanding  that  the  first 
should  not  be  enforced  unless  the 
second  proved  insufficient,  a  failure  to 
put  the  latter  on  record  by  which  it 
was  rendered  invalid,  was  held  to 
discharge  the  former,  and  the  court 
expressed  the  opinion  that  this  result 
would  have  followed  on  general  prin- 
ciples, and  without  any  specific  agree- 
ment; Tea/ Y.  Ross,  1  Ohio,  N.  S. 
469.  Similar  ground  was  taken  in 
IlarJcer  v.  Conrad,  12  S.  &  R.  301 ; 
and  a  creditor  who  had  liens  for  two 
distinct  debts,  on  two  separate  parcels 
of  land,  held  to  be  precluded  from  ap- 
propriating a  general  payment  made 
by  the  debtor,  to  one  of  the  liens  which 
had  been  suff'ered  to  expire  after  the 
payment  was  made,  to  the  injury  of  a 
purchaser  of  the  lot  bound  by  the  other, 
who  was  said  to  be  entitled  to  have  the 
appropriation  so  made  as  to  save  him 
harmless.  There  are,  however,  seve- 
ral cases  which  take  the  ground,  that 
a  creditor  is  not  bound  under  ordinary 
circumstances,  to  take  active  measures 
to  render  the  securities  which  he  holds 
effectual,  and  cannot  be  made  answer- 
able for  a  failure  to  put  them  on  re- 
cord, or  for  anything  short  of  actual 
misfeasance;  2  American  Leading 
Cases,  850,  356,  4th  ed. ;  Schroepel 
V.  Shaw,.  5  Barbour,  580;  3  Corn- 
stock,  446;  Lang  v.  Brevard,  3 
Strobhart,  Equity,  59. 

Assets  when  marshalled  hy  actual 
restraint  or  hy  sxCbrogation. — It  has 
been  seen,  {cnite,  220,)  that  there  are 
many  dicta,  and  several  decisions  to 
the  point,  that  where  one  creditor  has 
a  right  of  recourse  against  two  funds, 


276 


MARSHALLING     ASSETS, 


and  another  only  against  one,  the  first 
will  be  confined  in  the  first  instance, 
to  that  which  is  beyond  the  reach  of 
the  second.  Other  dicta  and  deci- 
sions of  the  same  nature,  may  be 
found  in  the  books;  The  Mechanics^ 
Bank  V.  Echcards,  1  Barbour,  S.  C. 
R.  271;  Beslei/Y.  Lawrence,  11  Paige, 
581 ;  Cloices  v.  Dickennon,  9  Cowen, 
403 ;  Avery  v.  Fallen,  1  Freeman, 
419;  8  Smedes  &  Marshall,  357; 
Bainc  v.  Williams,  10  Id.  113; 
T7iompson  v.  3hhrroi/,  2  Hill,  Ch. 
204,  213  ;  Hensliaw  v.  Wells,  9  Hum- 
phreys, 5G8.  But  this  doctrine  is  one 
more  frequently  announced,  than  ac- 
tually applied.  Its  practical  opera- 
tion has  been  confined  in  general,  to 
paying  the  creditor  out  of  one  fund 
rather  than  another,  when  both  were 
actually  in  the  hands  of  the  court,  or 
subject  to  its  disposition,  or  compel- 
ling him  to  place  his  remedies  at  the 
disposition  of  the  other  claimant,  after 
they  had  served  the  purpose  of  satis- 
fying his  own  debt,  without  restrain- 
ing him  in  their  use,  in  the  first  in- 
stance; Reir/h  V.  Leiter,  8  Maryland, 
405 ;  Morrison  v.  Kurtz,  15  Illinois, 
193. 

Thus  in  the  principal  case,  the 
decree  was  not  that  the  specialty  cre- 
ditors should  be  restrained  from  ob- 
taining satisfaction  out  of  the  personal 
assets,  but  that  if  they  should  exhaust 
the  personal  assets,  the  simple  con- 
tract-creditors should  stand  in  their 
places  as  against  the  land.  And  while 
Lord  Ilardwicke  said,  in  Lanoy  v, 
Athol,  2  Atkyns,  144,  that  a  creditor 
who  had  two  funds  should,  take  his 
satisfaction  out  of  that  fund  on  which 
another  creditor  had  no  lien,  the  re- 
lief actually  afforded  was  not  by  re- 
stricting the  rights  of  one  claimant. 


but  by  making  them  available  for  the 
benefit  of  the  other. 

The  true  rule  seems  to  be,  that 
equity  will  not  interfere  with  the  elec- 
tion of  a  creditor,  in  the  first  instance, 
unless  he  has  been  guilty  of  some  ne- 
glect or  default,  although  it  will  not 
allow  that  election  to  be  the  means 
of  ultimate  disappointment  to  other 
claimants;  Fowler  v.  Barksdale,  1 
Harper,  Ch.  164  ;  Jones  v.  Zollicoffer, 
2  Hawks,  623 ;  Briggs  v.  The  Flan- 
ters'  Bank,  Freeman,  Ch.  574;  Marh- 
ham  V.  Calvert,  5  Howard,  Miss.  E.. 
427 ;  Mix  v.  Eotchkiss,  14  Conn.  32; 
Douh  V.  Bar7ies,  4  Gill,  1 ;  Reigle  v. 
Leiter,  8  Maryland,  405.  The  rule, 
as  thus  stated,  has  been  repeatedly 
followed,  and  is  thoroughly  well  set- 
tled in  Pennsylvania.  In  Evans  v. 
Duncan,  6  Watts,  24,  it  was  decided, 
that  where  land  specifically  devised, 
was  sold  for  the  payment  of  debts, 
the  lien  creditors  of  the  devisee  could 
not  exclude  those  of  the  devisor,  on 
the  ground  that  their  lien  extended  to 
other  real  estate,  which  had  been  ex- 
pressly charged  with  debts  in  the  will, 
and  that  they  ought  to  proceed  against 
that,  and  leave  the  fund  in  court  open 
to  those  who  had  no  other  means  of 
payment.  "  It  is  alleged,"  said  Ken- 
nedy, J.,  "that  the  court  below  erred 
in  not  appropriating  the  money  to  the 
payment  of  the  debts  owing  to  the 
creditors  of  Stephen  Duncan,  which 
had  become  liens  upon  the  land  be- 
fore it  was  sold.  This  is  contended 
for  on  the  ground  that  Thomas  Bun- 
can,  by  his  will,  after  devising  the 
land  from  which  the  money  has  been 
raised,  to  his  son  Stephen  Duncan,  in 
fee,  has  appropriated  other  lands  and 
funds  for  the  payment  of  his  debts: 
and   that    althouirh    the  creditors   of 


ALDRICH     V.     COOPER. 


277 


Thomas  Duncan,  in  seeking  payment 
of  their  debts,  are  not  confined  or  re- 
stricted exclusively  to  look  to  the 
funds  and  property  which  he  has  set 
apart  for  that  purpose  in  his  will;  yet 
having  them  and  the  residue  of  his 
estate  all  bound  for  the  payment  of 
their  debts,  equity  will  compel  them, 
as  they  have  two  funds,  to  resort  to 
that  fund  which  will  enable  the  cre- 
ditors of  Stephen  Duncan  to  have 
their  debts  paid  also.  But  the  cre- 
ditors of  Thomas  Duncan,  having  the 
eldest  claim  upon  the  fund  in  the  court 
below,  and  being  entitled  to  be  paid 
immediately  out  of  it,  cannot  be  de- 
layed, but  have  a  right  to  be  prefer- 
red, unless  some  good  reason,  consist- 
ent with  the  principles  of  justice  as 
well  as  equity,  can  be  given  why  it 
should  not  be  so.  It  may  be  very  ad- 
vantageous and  all-important  to  them 
to  receive  their  money  with  as  little 
delay  as  possible ;  and  being  entitled 
to  have  received  their  debts  long  since, 
if  they  could  have  got  them,  it  would, 
therefore,  be  contrary  to  both  law  and 
equity  to  pass  a  decree  that  would  in 
its  effect  delay  them  in  the  receipt 
thereof  a  single  minute  longer  than 
is  indispensably  necessary  for  a  final 
determination  of  the  controversy. 
The  law  considers  it  fraudulent  to 
hinder  or  delay  creditors  in  receiving 
their  just  debts  after  they  have  be- 
come payable.  But  it  is  self-evident, 
that  to  decree  the  money  in  court  to 
the  creditors  of  Stephen  Duncan, 
would  inevitably  delay  the  creditors 
of  Thomas  Duncan,  in  the  receipt  of 
their  debts,  to  a  future  period  almost 
unknown.  It  would  necessarily  post- 
pone tlie  payment  of  them  until  mo- 
ney for  that  purpose  could  be  raised 
from  the  sale  of  other  lauds,  which 


might  require  considerable  time,  per- 
haps years,  to  accomplish  it."  This 
question  was  again  fully  considered  in 
Neff's  Ajjpeal,  9  W.  &  S.  36.  Judg- 
ment  had  been  obtained  in  that  case 
by  a  creditor  against  a  principal  and 
surety,  which  bound  the  real  estate  of 
both.  A  sale  of  the  land  of  the  sure- 
ty having  taken  place  subsequently, 
the  proceeds  were  claimed  by  junior 
encumbrancers,  on  the  ground,  that 
as  the  judgment-creditor  had  the 
means  of  recourse  to  two  funds,  while 
they  had  but  one,  he  should  be  com- 
pelled to  proceed  against  that  to  which 
they  had  no  access.  But  it  was  de- 
cided, that  although  if  both  funds  had 
been  actually  in  court  for  distribution, 
equity  would  have  been  done  among 
all  the  claimants  at  once;  yet  that  there 
could  be  no  right  to  restrain  or  delay 
one  creditor  for  the  benefit  of  others, 
when  the  injury  which  they  might 
sustain  by  his  election  to  proceed 
against  one  fund,  could  be  made  good 
by  subrogating  them  to  his  remedies 
against  the  other  fund,  to  which  they 
"sought  to  confine  him  in  the  first  in- 
stance. So  in  Ramsey's  Appeal,  2 
Watts,  220,  the  court  refused  to  oblige 
a  bank  to  resort  to  its  own  stock,  for 
satisfaction,  before  coming  in  against 
the  estate  of  an  insolvent  stockholder. 
A  similar  decision  was  made  in  Bun- 
lapy.  Clements,  7  Alabama,  539.  And 
the  principle  was  carried  to  its  fullest 
extent  in  Schenck's  Appeal,  2  Barr, 
304,  where  mortgage-creditors  were 
held  entitled  to  a  pro  rata  dividend 
under  an  assignment  for  the  benefit 
of  creditors,  without  reference  to  their 
remedy  under  the  mortgages,  which 
would,  of  course,  enure  to  the  use  of 
the  creditors  generally,  if  they  pro- 
duced more  than  the  amount  of  the 


278 


MARSHALLING     ASSETS. 


mortgage  debts,  after  deducting  the 
dividends.     The  same  point  was  de- 
cided  in    Moses   v.   Ranlet,    2   New 
Hampshire,  488  ;  Findlay  v.  Hosmer, 
2    Conn.    350;     Kcim's   Ajjpeal,    3 
Casey,  42 ;  and   Wood  x.  The  Bank 
of  Rutland,  19  Vermont,  403.    These 
cases   are   in    accordance    with    the 
opinion    of    Lord    Cottenham,    ante, 
200,    and    seem    indisputably  better 
law  than  the  decision  of  Sir  John 
Jjeaehiu  Greenwood  v.  Tai/lor.    And 
in  the  recent  case  of  Bundas's  Ap- 
peal, of  March  Term,  1850,  the  Su- 
preme Court  of  Pennsylvania  refused 
to  oblipce  the  note  holders  and  deposi- 
tors of  the  United  States  Bank  to  ob- 
tain satisfaction  from  an  assignment 
in  their  favor,  before  coming  in  under 
an  assignment  of  other  property,  in 
favor  of  creditors  generally.     A  ne- 
cessary corollary  to  the  principle  es- 
tablished by  these  decisions,  seems  to 
be,  that  a  creditor  should  not  be  com- 
pelled to  resign  or  forego  any  of  his 
remedies,  for  the  purpose  of  promot- 
ing equality  between  him  and  other 
claimants,  even  when  the  estate  of 
the  debtor  is  insolvent ;  because  this 
would  be  to  deprive  him  of  a  legal 
right  or  advantage,  for  the  purpose  of 
protecting  other  parties  whose  equity 
is  in  no  respect  superior  to  his  own  ; 
Kittera's  Appeal,  5  Harris,  416. 

The  decisions  in  New  York  co  fur- 
ther  than  those  of  Pennsylvania,  and 
extend  the  equity,  in  some  cases,  tore- 
straining  the  creditor  in  the  use  of  his 
remedies,  when  it  can  be  done  without 
injury  to  him,  and  is  necessary  for  the 
protection  of  others.  But  it  is  admitted 
that  such  a  restraint  can  only  be  impos- 
ed under  special  circumstances.  In 
Brinhcrhoff  \.  Marvin,  5  Johns.  Ch. 
320,  where  the  question  arose  as  be- 


tween two  judgment-creditors,  one  of 
whom  held  collateral  securities,  while 
the  other  did  not,  it  was  decided,  that 
the  right  of  the  latter  was  limited  to  de- 
manding an  assignment  of  the  secu- 
rities, and   did  not  extend   to   com- 
pelling the  former  to  resort  to  them 
for  payment  in  the  first  instance,  un- 
less it  were  shown  that  the  remedy 
they  afforded   was   botli    ample   and 
certain.     In  the  subsequent   case  of 
Evertson,  v.  Booth,  19  Johnson,  486, 
a  decree  had  been  made  by  the  Chan- 
cellor, confining  a  creditor  to  one  of 
two  funds,  in  order  to  leave  the  other 
fund  open  to  other  creditors,  who  had 
only  that  to  look  to.     But  this  decree 
was  reversed  by  the  Court  of  Errors, 
on  the  ground  that  the  principle  on 
which  it  proceeded,  could  only  be  en- 
forced where  it  was  evident  that  no 
injury  would  result  from  enforcing  it, 
and  that  in  the  case  before  them,  the 
fund  to  which  the  creditor  was  con- 
fined, was  not  shown  to  be  suflicient 
to  secure  him,     *'  I  yield  my  entire 
assent  to  the  proposition,"  said  Spen- 
cer, J.,  in  delivering  his  opinion   in 
the  Court  of  Errors,  ''  that  where  a 
party  has  two  funds  out  of  which  he 
can  satisfy  his  debt,  and  another  cre- 
ditor has  a  lien,  posterior  in  point  of 
time,  on  one  of  the   funds  only,  the 
first  creditor  will,  in  equity,  be  com- 
pelled to  resort  to  that  fund  which 
the  junior  creditor  cannot  touch,  in 
order    that   the   junior  creditor  may 
avail    himself  of  his   own   security, 
where  it  can  be  done  without  injustice 
or  injury  to   the   debtor   or  creditor. 
This  principle,  which  is  so  equitable 
and  just,  was  thus  illustrated  by  Lord 
Hardwicke,  in  Lanoy  v.    The  Dnl-e 
and  Dnrhrssof  Athol,  2  Atkins,  446. 
'  Suppose,'  he  said,  '  a  person  who  has 


ALDRICH     V.      COOPER. 


279 


two  real  estates,  mortgages  botlx  to 
one  person,  and  afterwards,  only  one 
estate  to  a  second  mortgagee,  the 
court,  in  order  to  relieve  the  second 
mortiraaee,  have  directed  the  first  to 
take  his  satisfaction  out  of  that  estate 
only  which  is  not  included  in  the 
mortgage  to  the  second  mortgagee,  if 
that  is  sufl&cient  to  satisfy  the  first 
mortgage,  in  order  to  make  room  for 
the  second  mortgagee.'  The  same 
principle  was  adopted  in  Wright  v. 
Nutt,  1  H.  Bl.  150,  and  in  Haijs  v. 
Ward,  4  Johns.  Ch.  Rep.  132,  and  in 
several  other  cases.  But  a  court  of 
equity  will  take  care  not  to  give  the 
junior  creditor  this  relief,  if  it  will 
endanger  thereby  the  prior  creditor, 
or  in  the  least  impair  his  prior  right 
to  raise  his  debt  out  of  both  funds. 
The  utmost  that  equity  enjoins  in  such 
a  case  is,  that  the  creditor  who  has  a 
prior  right  to  two  funds,  shall  first 
exhaust  that  to  which  the  junior  cre- 
ditor cannot  resort;  but  where  there 
exists  any  doubt  of  the  sufiiciency  of 
that  fund,  or  even  where  the  prior 
creditor  is  not  willing  to  run  the  haz- 
ard of  getting  payment  out  of  that 
fund,  I  know  of  no  principle  of  equity 
which  can  take  from  him  any  part  of 
his  security,  until  he  is  completely 
satisfied."  The  same  doctrine  was 
held  in  Woolcochs  v.  Hart,  1  Paige, 
185. 

In  these  instances,  as  in  most  others, 
the  qualification  attached  to  the  prin- 
ciple deprived  it  of  practical  effect, 
but  in  the  subsequent  case  of  ThcN. 
Y.  Steamboat  Co.  v.  The  iV".  J.  Co., 
1  Hopkins,  460,  it  was  applied  with 
little  regard  to  the  qualification,  and 
carried  to  the  extent  of  compelling  a 
mortgagee  of  two  funds,  to  exhaust 
his  remedy  against  one  of  them,  al- 


though in  another  state,  and  of  ques- 
tionable validity,  before  proceeding 
against  the  other,  which  had  been 
mortgaged  to  the  complainant.  In 
making  this  decision,  the  Vice  Chan- 
cellor relied  on  the  authority  of  Hayes 
v.  Ward,  4  Johnson,  Ch,  123,  al-  t 
though  that  case  was  decided  on  the 
equity  of  the  surety  to  the  security 
taken  by  the  creditor,  and  on  the  de- 
fault of  the  creditor  in  vitiating  the 
security  which  he  had  taken,  and 
therefore  presented  features  wholly 
dissimilar  to  the  case  which  it  was 
relied  on  to  support.  In  the  subse- 
quent case  of  James  v.  Hubbard,  1 
Paige,  228,  the  court  yielded  a  quali- 
fied assent  to  the  decisions  in  Evertmn 
V.  Booth,  and  The  N.  Y.  Steamboat 
Co.  V.  The  N.  J.  Co.  But  the  ques- 
tion actually  decided,  grew  out  of  the 
equities  of  successive  purchasers  from 
the  same  debtor,  and  the  relief  afi"ord- 
ed  was  limited  to  a  decree  for  subro- 
gation. In  some  of  the  states  the 
doctrine  is  carried  even  farther  than 
in  New  York.  Thus  it  was  held  in 
Fallen  v.  The  Agricultural  Bank,  1 
Freeman,  419  ;  8  Smedes  &  Marshall, 
357,  that  a  prior  purchaser  might  re- 
strain a  judgment-creditor  of  the  ven- 
dor, from  levying  on  the  land  convey- 
ed to  him,  and  thus,  in  effect,  throw 
the  burden  of  the  debt  on  the  subse- 
quent purchasers,  without  even  mak- 
ing them  parties  to  the  bill  filed  for 
the  purpose.  And  the  law  was  held 
the  same  way  in  Thompson  v.  Mur- 
ray, 2   Hill,   Ch.   204,  213. 

There  are,  as  it  would  seem,  few     , 
cases  in  which  this  doctrine  can  be      i 
applied    with    more    propriety,    than 
where  an  insolvent  estate  is  in    the 
hands    of   trustees    or    executors    for 
distribution,  when,  as  the  fund  is  un- 


280 


MARSHALLING     ASSETS. 


der  the  control  of  cquit_y,  and  may  be 
presumed  to  be  secure  from  loss,  it 
may  be  proper  to  require  those  credi- 
tors who  hold  collateral  security,  to 
look  to  that  in  the  first  instance,  be- 
fore comins;  in  on  the  trust  fujld; 
Bedey  v.  Laicrence,  11  Paige,  Mi" ;**''gument,  for  it  can  hardly  be  contend- 
Eahey  v.  Reed,  9  Paige,  44G.     And     ed  that  the  superior  diligence  or  good 


remedy  as  a  means  of  payment,  should 
be  obliged  to  take  the  risk  and  delay 
of  enforcing  it  on  themselves.  When 
the  question  arises  simply  between 
rival  creditors,  the  justice  of  this  re- 
quisition is  too  plain   to  require  ar- 


when  two  funds  or  species  of  property 
are  both  in  the  hands,  or  subject  to 
the  control  of  a  court  of  equity,  as  in 
the  administration  of  the  assets  of  a 
decedent,  the  burden  of  debts  may  be 
thrown  in  the  first  instance  where  it 
ought  to  fall  ultimately,  and  payment 
of  a  mortgage  decreed  out  of  the  per- 
sonalty in  aid  of  heirs  or  devisees  of 
the  realty;  Goodhuni  v.  Stevens,  1 
Maryland,  Ch.  420.  Nor  is  there 
any  reason  to  doubt,  that  equity  may 
impose  terms  on  those  who  seek  to 
enforce  a  lien  for  purchase-money,  or 
other  claim  which  is  merely  equitable, 
and  L^rant  them  the  relief  asked,  in 
the  way  which,  without  prejudicing 
them,  will  inflict  the  least  possi- 
ble injury  on  third  persons;  Gibson 
V.  M'CormicJc,  10  Gill  &  J.  107; 
Re{(jlc  V.  Letter,  8  Maryland,  405; 
Wn'i/ht  v.  Atkinson,  3  Snced,  5S5. 

There  may  be  some  reason  for  re- 
straining the  creditor  in  England,  and 
compelling  him  to  look  to  the  princi- 
pal before  he  can  proceed  against  the 
surety,  for  there,  under  the  doctrine  of 
Copisy.  Middeton,  ante,  22G,  satisfac- 
tion may  extinguish  the  debt,  and  with 
it  the  personal  securities  given  by  the 
debtor.  But  in  this  country,  where 
the  payment  of  a  debt  is  not  allowed 
to  extinguish  it,  when  the  puj-poscs  of 
equity  require  that  it  should  be  kept 
alive,  this  reason  does  not  apply,  and 
it  seems  only  just  to  ref|uire,  that 
those  who  insist  on  the  sufficiency  of  a 


fortune  which  has  acquired  the  con- 
trol of  two  funds,  should  be  a  reason 
for  postponing  a  creditor  to  another 
who  has  been  less  active  or  less  fortu- 
nate. 

The  principles  which  ought  to  pre- 
vail in  every  instance,  where  it  is 
sought  to  exclude  a  creditor  from  one 
fund  and  to  resti'ain  him  to  another, 
were  expressed  with  much  clearness 
in  Post  V.  MacTcall,  3  Bland,  484, 
511.  "Great  care  must  betaken," 
said  the  chancellor,  "  in  making  such 
an  arrangement,  not  to  lessen  or  im- 
pair, in  any  manner  whatever,  the 
obligation  of  the  creditor's  contract. 
It  can  only  be  made  where  all  the 
parties  are  before  the  court,  and  the 
whole  subject  is  within  its  jurisdic- 
tion ;  and  when  it  is  clear,  that  the 
creditor  can  sustain  no  loss,  nor  be 
in  any  way  delayed,  or  have  his 
claim  subjected  to  any  additional 
peril.  For  if  the  parties  have  not 
been  all  brought  before  the  court; 
or  if  they  cannot  be  brought  before 
it;  because  of  their  not  having  any 
such  privity  of  interest  as  will  war- 
rant the  making  of  them  parties  to 
the  saine  suit;  or  if  the  funds  cannot 
be  embraced  within  the  scope  of  the 
same  suit;  and  much  more  so,  if  they 
be  not  both  of  them  within  the  juris- 
diction of.  the  court,  it  would  be  utterly 
impracticable  to  make  any  such  ar- 
rangement in  favor  of  any  one  set  of 
creditors  against  another,  the  security 


ALDRICH     V.     COOPER. 


281 


of  whose  claim  may  be  thus  greatly 
endangered,  and  its  satisfaction  neces- 
sarily delayed."  And  it  was  conse- 
quently decided  that  the  defendant 
could  not  be  compelled  to  forego  his 
claim,  under  a  mortgage,  in  favor 
of  other  mortgage  creditors,  on  the 
ground  that  he  held  a  mortgage  for 
the  same  debt,  on  other  property  lying 
beyond  the  jurisdiction  of  the  court, 
on  which  they  had  no  lieu.  And  it 
would  seem  to  be  well  settled  in  Ma- 
ryland, under  all  the  decisions,  that 
the  court  will  not  delay  or  restrict  a 
creditor  in  the  selection  or  use  of  his 
remedies,  for  the  purpose  of  aiding 
other  creditors,  or  of  giving  effect  to 
the  equities  which  exist  between  those  * 
who  are  liable  for  the  payment  of  the 
debt ;  Gibson  v.  M^  Cormich,  10  Gill 
&  J.  107 ;  Douh  V.  Barnes,  4  Gill,  1 ; 
Re.hjle  V.  Letter,  8  Maryland,  405. 

It  is  also  plain  that  one  creditor  can 
have  no  right  of  subrogation  to  the 
remedies  of  another,  or  to  restrain  him 
in  their  use  in  the  first  instance,  to 
the  injury  of  third  persons,  whose 
claims  stand  on  the  same  or  on  a 
higher  footing  ;  for  when  equities  are 
equal,  chancery  will  let  the  law  take 
its  course,  and  will  never  postpone  one 
party  for  the  benefit  of  another,  unless 
the  latter  can  show  a  higher  or  prior 
right  or  title ;  M^  Ginnis's  Appeal,  8 
Harris,  445.  Thus  a  partnership  cre- 
ditor will  not  be  compelled  to  enforce 
a  security  given  by  one  of  the  part- 
ners, in  order  to  leave  the  partnership 
assets  for  the  payment  of  the  other 
creditors  of  the  firm,  when  the  effect 
would  be  to  defeat  or  delay  private 
creditors,  whose  right  to  the  separate 
assets  is  at  least  as  good  as  the  part- 
nership creditors;  3Iorrison\.  Kurtz, 
15  Illinois,  193 ;  ante,  vol.  1,  p.  161. 


The  course  of  decision  has  generally 
been  the  same,  where  the  obligation 
of  the  creditor  to  resort  to  one  fund, 
rather  than  another,  is  founded,  not 
on  the  interest  of  a  rival  creditor,  but 
on  the  equities  subsisting  between  the 
parties,  directly  or  indirectly,  liable 
for  the  payment  of  the  debt ;  Douh  v. 
Barnes,  4  Gill,  1.  Numerous  dicta 
may  be  found  in  support  of  the  pro- 
position, that  when  one  of  two  funds 
is  primarily  liable  for  a  debt  charge- 
able upon  both,  the  creditor  may  be 
compelled  to  resort  to  the  former,  in 
exoneration  of  the  latter;  James  v. 
Iluhhard,  1  Paige,  228 ;  Piatt  v.  St. 
Clair's  Heirs,  6  Ohio,  227;  ante. 
276.  But  this  proposition,  like  that 
last  considered,  if  true  in  theory,  has 
been  seldom  applied  in  practice.  In 
Wright  V.  Nutt,  3  Brown,  C.  C.  326, 
1  H.  Blk.  126,  the  property  held  in 
this  country  by  Sir  James  Wright,  an 
American  loyalist,  had  been  confiscat- 
ed by  the  State  of  Georgia,  during 
the  Revolutionary  War,  and  vested 
in  commissioners  for  the  public  bene- 
fit, subject  to  the  payment  of  his 
debts,  and  it  was  decided,  that  his 
American  creditors  were  bound  to 
have  recourse  to  the  fund  in  Georgia, 
before  proceeding  against  him  in  Eng- 
land. But  this  decision,  which  was 
political  rather  than  legal,  was  in  con- 
flict with  the  prior  case  of  Hoidditch 
V.  31ist,  1  P.  Wms.  695,  and  was  sub- 
stantially overruled  by  Lord  Eldon  in 
Wright  V.  Simpson,  6  Ves.  714,  where  ^^ 
his  lordship  held,  that  to  confine  a 
creditor  to  one  fund,  to  the  exclusion 
of  another,  it  must  at  least  appear, 
that  the  former  fund  is  adequate  as  a 
means  of  payment,  and  that  unless  he 
resorts  to  it  for  satisfaction,  it  will  be 
wholly  lost  to  the  debtor.     And  he 


282 


MARSHALLING     ASSETS. 


consequently  decided,  that  although 
it  had  been  established  in   the   case 
before  him,  that  the  creditor  might 
have  had  recourse  to  the  fund  arising 
from  the  sale  of  the  confiscated  estates, 
while  the  debtor  could  not,  yet  as  it 
had  not  been  clearly  shown,  that  this 
recourse  would  have  proved  a  safe  or 
certain  means  of  collecting  the  debt, 
no  sufficient  ground  had  been  made 
out  for  refusing  to  give,  effect  to  the 
personal  obligation,  on  the  faith  of 
which  the  creditor  had  entered  into 
the   contract.     And   he    expressed   a 
strong  disinclination  to  the  idea,  that 
a  creditor  can  be  excluded  from  one 
fund,  on  the  ground  of  a  failure  to 
proceed  against  another,  even  when  it 
has  resulted  in  a  loss  of  the  latter; 
unless  there  is  something  to  place  him 
in  the  position  of  a  trustee,  as  where 
he  has  taken  property  as  security  or 
in  pledge  for  the  debt.     This    deci- 
sion, in  which  Lord  Eldon's  sagacity 
of  thought  and  want  of  method  in  ex- 
pression, are  alike  conspicuous,  traces 
the  outline  of  the  whole  doctrine  of 
equity  on   this   head,   and   has   been 
followed  in  most  of  the   subsequent 
occasions,  in  which  the  duty  of  credi- 
tors to  adjust  the  remedies  for  the  re- 
covery of  their  debts,  so  as  to  inflict 
the  least  amount  of  injury  on  those 
whose  property  is  liable  for  their  pay- 
ment, has  formed  the  subject  of  judi- 
cial investigation.    From  the  language 
held  by   his   lordship,   three   things 
would  seem  essential  to  confine    the 
creditor  to  one  fund  or  remedy,  in  ex- 
oneration of  another.     It  must  first 
be  shown,  that  the  fund  to  which  it 
is  sought  to  confine  him,  affords  a  safe 
and  certain   means  of  satisfying  the 
debt ;  next,  that  a  loss  will  be  inflicted 
on  the  debtor,  by  a  primary  recourse 


to  the  other  fund,  for  which  the  first 
will  not  aff"ord  an  adequate  indemnity ; 
and  finally,  that  the   relation  of  the 
creditor  and  debtor  to  each  other  and 
to  the  funds  in  question,  is  such  as  to 
render  it  the  duty  of  the  former  to 
consult  the  interests  of  the  latter,  as 
well  as  his  own.     No  case  would  seem 
better  fitted  for  the  application  of  these 
principles,  than  those  which  arise  be- 
tween creditors  on  the  one  hand,  and 
principals  and  sureties  on  the  other. 
And  it  has   accordingly,  often    been 
contended,  that  the  creditor  should  be 
obliged  to  proceed  against  the  estate 
of  the    principal,    before    instituting 
proceedings  against  the  surety.   There 
'  is  no  doubt  that  the  surety  may  file  a 
bill  against  the  principal,  and  make 
the  creditor  a  party,  for  the  purpose 
of  compelling  the  former  to  satisfy  the 
debt,  and  the  latter  to  assign  all  the 
securities    held    for    its    satisfaction. 
ante,   vol.   1,   p.    144;    2    American 
Leading  Cases,   363,  4th  ed.     But, 
except    in    special    cases,  and   upon 
some  particular  equity,  he  is  not  en- 
titled to  restrain  proceedings  against 
himself,  nor  even  to  compel  the  cre- 
ditor to  take  the  burden  of  active  pro- 
ceedings against  the  principal ;  Hayes 
V.  Ward,  4  Johnson,  Ch.  123;   In  re 
Bahhock,    3    Story,    393;    Marsh  v. 
Pike,  1  Sandford,  Ch.  210.  It  was,  not- 
withstanding, decided  by  the  Supreme 
Court    of   New    York,    in    Paine    v. 
Packard,  13  Johnson,  174,  and  again 
by  the  Court  of  Errors,  in  King  v. 
Baldwin,  17  Johnson,  384,  overruling 
the  decision  of  the  chancellor  in  the 
court  below,  2  Johnson,  Ch.  554,  that 
a  failure  to  comply  with  a  notice  in 
pais,  to  bring  suit  against  the  princi- 
pal, coupled  with  the  loss  of  the  debt, 
by  his  subsequent  insolvency,  would 


ALDRICn     V.     COOPER. 


283 


discliarge  the  surety.  This  course  of 
decision  is  still  followed  in  New  York, 
and  has  been  adopted  in  Pennsylva- 
nia, Alabama,  and  some  of  the  other 
states  of  the  Union;  2  American  Lead- 
ing Cases,  4th  ed.  363 ;  Ahercrombie  v. 
Knox,  3  Alabama,  728  ;  Bruce  v.  Ed- 
wards, 1  Stewart,  11 ;  The  Chamhers- 
hiirgh  Ins.  Co.  v.  Smith,  1  Jones,  120, 
127.  But  it  is  admitted  to  rest  on 
questionable  foundations,  and  is  con- 
fined strictly  to  the  point  above  stated ; 
Huffman  v.  Hurlhert,  13  Wend.  377; 
The  Erie  Bank  v.  Gibson,  1  Watts, 
1-1:3;  The  Manchester  Iron  Manuf.  Co. 
V.  Sweeting,  10  Wend.  162 ;  Cope  v. 
Smith,  8  S.  &  R.  110 ;  post,  notes  to 
Rees  V.  Berrington.  No  case  has  yet 
decided,  that  such  a  notice  precludes 
the  creditor  from  proceeding  contempo- 
raneously against  principal  and  surety, 
to  the  extent  of  obtaining  judgment 
and  issuing  execution  against  both, 
although  he  cannot  obtain  more  than 
one  satisfaction  ;  and  it  would  seem,  on 
the  contrary,  well  settled  under  all 
the  decisions,  that  if  the  creditor  may 
be  compelled  to  proceed  against  the 
principal,  he  cannot  be  obliged  to 
forego  any  of  his  remedies  against 
the  surety  ;  The  Chamhersburgh  Ins. 
Co.  V.  Smith,  1  Jones,  Penna.  R.  120. 
The  true  interpretation  of  the  doc- 
trine of  Wright  v.  Simpson,  undoubt- 
edly is,  that  the  right  of  the  surety 
is  limited  to  compelling  the  creditor 
to  afford  him  the  means  of  collecting 
the  debt  from  the  principal,  at  his 
own  risk  and  expense,  and  that  this 
can  only  be  coupled  with  a  delay  of 
execution  against  the  surety,  when 
the  creditor  is  fully  indemnified,  and 
when  some  special  injury  would  re- 
sult, were  he  allowed  to  enforce  imme- 
diate payment;    The  Chamlersburg 


Ins.  Co.  V.  Smith,  1  Jones,  120.  In 
Hawks  V.  Geddis,  16  S.  &  II.  23,  a 
surety  set  up  as  a  defence  to  an  action 
brought  by  the  creditor,  that  the  lat- 
ter held  a  lien  on  the  real  estate  of  the 
principal,  which  was  sufiicient  for  the 
payment  of  the  debt,  and  it  was  held 
by  the  court,  that  although  these  cir- 
cumstances were  no  bar  to  the  action, 
they  afford  a  sufficient  reason  under 
the  equitable  jurisprudence  of  Penn- 
sylvania, for  staying  the  execution, 
unless  the  creditor  would  affoi'd  the 
surety  the  means  of  enforcing  the  lien 
against  the  estate  of  the  principal,  and 
that  estate  should  prove  insufficient  as 
a  means  of  payment.  But  on  a  sub- 
sequent argument  of  the  case,  this 
decision  was  reversed,  and  it  was  de- 
cided, that  the  equity  of  the  surety 
could  so  no  further  than  subrogation 
to  the  lien,  upon  the  satisfaction  of 
the  debt  out  of  his  own  estate ;  Ged- 
dis V.  Hawks,  1  Watts,  280. 

It  may  perhaps  be  conceded,  that 
where  the  equity  subsisting  between 
the  different  parties  whose  property  is 
liable  for  the  discharge  of  a  debt,  is 
founded  on  the  contract  with  the  credi- 
tor, as  well  as  on  the  relation  subsist- 
ing between  themselves,  there  is  more 
reason  for  confining  him  in  the  first 
instance  to  the  fund,  on  which  the 
burden  of  payment  must  fall  ultimate- 
ly. Thus  it  was  held  in  Newson  v. 
IILendon,  6  Georgia,  392,  that  where 
it  clearly  appeared,  that  the  partner- 
ship assets  in  the  hands  of  the  survi- 
vor of  two  partners,  were  sufficient 
for  the  payment  of  the  joint  debts, 
a  partnership  creditor  would  be  com- 
pelled to  levy  on  them,  before  issuing 
an  execution  against  the  separate 
estate  of  the  deceased  partner,  in 
the  hands  of  a  vendee,  to  whom  it 


284 


MARSHALLIXG     ASSETS. 


liad  been  conveyed  in  satisfaction  of 
a  debt. 

It  must  also  be  admitted,  that  where 
a  party  who  has  a  direct  interest  in 
property,  threatened  with  an  execu- 
tion, comes  forward  to  ask  that  the 
creditor  shall  be  obliged  to  proceed  in 
the  first  instance  against  other  pro- 
perty, on  which  the  debt  is  primarily 
chargeable,  the  considerations  of  e(|ui- 
ty  in  his  favor  are  stronger  than  where 
the  question  arises  in  a  contest  be- 
tween rival    creditors,  each  seeking 
priority  for  his  own  execution.     In 
the  latter  case,  the  interests  of  the 
owner  of  the  property  are  not  involv- 
ed, and  the  only  point  in  dispute  is  as 
to  which  of  the  creditors  should  bear 
the  risk  and  delay,  attendant  upon  a 
resort  to  the  other  fund.     But  where 
a  surety  or  vendee,  seeks  to  compel  a 
resort  to  the  property  of  the  principal 
or  the  vendor,  the  effect  of  refusing 
the  application  is  to  create  a  circuity 
of  proceeding,  and  to  render  two  ju- 
dicial sales  necessary  instead  of  one. 
Moreover,   subrogation,  although  an 
ample  remedy,  as  between  creditors, 
is  a  most  insufficient  one,  as  between 
principals  and  sureties,  or  successive 
purchasers.      If    the    judgment    to 
which  the  creditor  is  subrogated,  be 
good,  he  cannot  be  a  loser,  for  he  will 
receive  the  amount  of  his  debt,  al- 
though from  a  different  quarter,  and 
where  it  is  not  good,  his  claim  for  re- 
lief necessarily  fails  altogether.     But 
pecuniary  compensation  cannot  make 
good  the  loss  of  specific  property,  or 
replace  a  surety  or  vendee  whose  land 
has  been  actually  sold,  in  the  position 
in  which  he  was  before  the  sale.    Be- 
sides, the  compensation  can  only  ex- 
tend to  the  amount  of  the  debt,  and 
not  to  the  value  of  the  property  sold 


to  pay  it,  nor  to  the  sacrifice  neces- 
sarily attendant  upon  a  forced  sale. 
These  considerations  can  furnish  no 
reason,  why  the  creditor  should  not 
push  his  claim  to  judgment  against 
the  surety,  but  may  render  it  equi- 
table, that  he  should  be  obliged,  after 
obtaining  a  judgment,  which   is  an 
adequate  lien,  both  on  the  land  of 
principal  and  surety,  to  issue  his  exe- 
cution in  the  first  instance  against  the 
former.     The  same  equity  exists  still 
more  strongly  in  favor  of  a  vendee, 
who  has  purchased  land,  subject  to  a 
judgment,  for  in  that  case  the  liabi- 
lity does  not  grow  out  of  a  personal 
default.     It  has  been  seen,  that  in 
Clowes  V.  Dickenson,  5  Johnson,  Ch. 
235,  the  chancellor  expressed  an  opi- 
nion, that  under  such  circumstances, 
the  land  of  the  vendor  must  be  first 
taken  in  execution,  if  sufficient.    And 
although  the  point  was  not  actually 
decided,   it    has    been    followed    as 
law  on  several  subsequent  occasions ; 
Thomjyson  v.   Murray,  2   Hill,   Ch. 
213,  214  J  Pallcn  V.  The  A<jricultu- 
ral  Bank,  1  Freeman,  419 ;  8  Smedes 
&  Marshall,  357.      Notwithstanding 
the  weight  due   to  these   decisions, 
and  to  the  considerations  above  stated, 
the  wisdom  of  restraining  the  credi- 
tor, instead  of  merely  subrogating  the 
parties,  injured  by  his  course  of  action 
to  his  remedies,  is  exceedingly  ques- 
tionable.     For,  whenever   they  can 
raise  a  sufficient  sum  of  money,  to 
pay  the  debt,  and   after  averting  a 
sale  of  their  own  property,  proceed  to 
obtain  au  indemnity  out  of  that  of  the 
parties  primarily  liable,  there  can  be 
no    sufficient    reason    for   interfering 
witli    the    election   of    the    creditor. 
The    hardship   of   refusing  to  inter- 
fere, only  begins  where  a  vendee  or 


ALDRICn     V.      COOPER. 


285 


surety  is  unable  to  meet  the  debt,  and 
where  his  property  sold  at  a  sacrifice, 
for  which  the  law  can  allow  him  no 
compensation.  But  the  difficulty  of 
administering  justice  in  such  cases, 
consists  in  the  number  of  circumstan- 
ces which  must  be  accurately  weigh- 
ed and  determined,  in  order  to  ascer- 
tain when  the  intervention  of  equity 
is  necessary  for  the  protection  of  one 
party,  and  will  not  produce  material 
injury  to  the  other.  Delay  may  often 
be  more  injurious  to  the  creditor,  than 
beneficial  to  the  debtor,  and  applica- 
tions to  the  discretion  of  a  court 
founded  on  special  equities,  neces- 
sarily tend  to  delay,  whether  they  are 
acted  on  or  rejected.  On  the  whole, 
it  would  seem,  that  the  course  which 
the  courts  of  Maryland  and  Pennsyl- 
vania have  adopted  in  holding,  that 
those  who  are  liable  in  property  or  per- 
son for  the  payment  of  debts,  must 
pay  in  the  first  instance,  and  then  look 
for  indemnity  afterwards,  is  more  truly 
equitable  in  the  long  run  for  all  par- 
ties, than  any  other,  and  that  any  good 
which  may  result  from  deviating  from 
it  in  particular  instances,  will  be  more 
than  counterbalanced  by  the  injury 
resulting  from  its  application  in  gene- 
ral. 

The  rule  which  prevails  when  the 
demands  of  diff'erent  creditors  are  in 
question,  applies  with  the  same  force 
when  several  liens  or  securities  are 
held  for  the  same  debt,  and  entitles 
the  creditor  to  enforce  all  his  reme- 
dies at  once,  or  pursue  one,  while  still 
retaining  a  control  over  the  others, 
subject  only  to  the  restriction  of  doing 
nothing  which  may  deteriorate  any 
fund  or  security  with  which  he  has 
been  entrusted  by  the  debtor,  to  the 
prejudice  of  the  latter.     Hence,  no- 


thing is  better  settled,  than  that  the 
possession  or  control  of  collateral  se- 
curity, will  not  debar  the  creditor  from 
proceeding  against  the  person  or  es- 
tate of  the  debtor,  nor  entitle  the 
latter  to  require  that  the  security  shall 
be  surrendered,  or  measures  taken  to 
render  it  effectual,  before  judgment  is 
entered,  or  execution  issued  against 
himself;  The  Chamhershurg  Ins. 
Co.  V.  Smith,  1  Jones,  120 ;  Lord  v. 
The  Ocean  Bank,  8  Harris,  394; 
The  Bank  of  the  United  States  v. 
Peahody,  lb.  45-4;  Kittera's  Estate, 
5  Id.  416;  Dunlap  v.  Clements,  7 
Alabama,  539.  And  the  better  opi- 
nion would  seem  to  be,  that  the  in- 
solvency of  the  debtor,  or  the  institu- 
tion of  a  suit  in  equity,  for  the  distri- 
bution of  his  assets,  will  make  no 
change  in  this  respect,  nor  deprive 
the  creditor  of  any  legal  right,  or  pri- 
ority, which  he  may  have  secured, 
through  superior  diligence  or  good 
fortune,  at  an  antecedent  period. 
Thus,  in  Findlay  v.  Hosmer,  2  Conn. 
330,  a  mortgagee  was  held  entitled  to 
a  dividend,  on  the  full  amount  of  the 
mortgage  debt,  out  of  the  assets  of  an 
insolvent  estate,  irrespectively  of  the 
security  held  for  its  payment,  and  the 
remedy  of  the  other  creditors  said  to 
lie  in  subrogation  to  the  mortgage,  if 
it  produced  more  than  enough  for  the 
payment  of  residue  of  the  debt.  The 
same  view  was  taken  in  West  v.  The 
Bank  of  RutJand,  19  Vermont,  403. 
The  question  was  examined  with  much 
ability,  by  Krause,  J.,  in  Shejick's 
Appeal,  2  Barr,  304,  and  insolvency 
said  to  strengthen  rather  than  invali- 
date the  general  rule,  that  a  creditor 
shall  not  be  shut  out  from  one  fund, 
merely  because  he  has  another,  by  de- 
monstrating the  insufficiency  of  one  of 


28C 


MARSHALLING     ASSETS. 


the  funils,  and  reudering  it  probable, 
that  both  may  be  requisite  for  satis- 
faction. 

The  distribution  of  assets  in  bank- 
ruptcy is,  however,  governed  in  Eng- 
land by  a  different  principle,  under 
which  the  securities  held  for  the  debt 
are  deducted  from  it,  and  the  proof 
limited  to  the  residue ;  the  means  of 
obtaining  payment  being  treated  as 
equivalent  to  payment  itself,  and  the 
debtor  credited  with  all  that  the  cre- 
ditor might  have  collected  by  a  pro- 
per use  of  his  remedies.  In  Green- 
wood V.  Taylor,  1  Russell  &  Mylne, 
185  ;  nntc,  200 ;  this  rule  was  said  to 
extend  beyond  bankruptcy,  to  the  ad- 
ministration of  the  estates  of  insol- 
vents after  death;  and  a  mortgagee 
held  entitled  to  a  dividend  on  so  much 
only  of  the  mortgage  debt  as  the 
mortgage  was  insufficient  to  satisfy. 
This  course  is  pursued  in  Massachu- 
setts, and  the  creditors  of  an  insolvent 
estate  obliged  to  deduct  or  surrender 
specific  or  collateral  liens  or  securities, 
before  coming  in  on  the  estate  at  large; 
Amory  v.  Francis,  18  Mass.  368; 
Farnum  v.  Boutelle,  13  Metcalf,  159. 
This  course  was  defended  in  Farnum 
T.  Boutelle,  on  the  ground  that  equa- 
lity is  equity,  and  said  to  be  upheld 
both  by  authority  and  principle.  It 
has,  however,  been  repeatedly  held, 
and  is  well  settled,  that  equity  will  not 
restrain  or  interfere  with  legal  rights, 
merely  because  they  are  not  equities, 
nor  unless  there  is*  something  unjust 
or  oppressive  in  the  mode  in  which  they 
are  acquired,  or  in  the  use  attempted 
to  be  made  of  them,  which  certainly 
cannot  be  said  of  the  use  of  concurrent 


liens  or  remedies,  for  the  purpose 
of  obtaining  satisfaction  of  the  debt. 
To  deny  a  creditor  that  to  which  he  is 
prima  facie  entitled,  unless  he  will  sur- 
render something  else  to  which  he  has 
an  equal  claim,  is  to  make  the  exist- 
ence of  one  right  a  means  and  reason 
for  withholding  or  impairing  the  exer- 
cise of  another.  He  who  seeks  to  en- 
force a  claim  which  is  merely  equitable, 
will  no  doubt  be  compelled  to  do  equity 
as  the  condition  of  obtaining  its  assist- 
ance; but  the  maxim  does  not  apply 
to  legal  rights,  even  when  the  only 
mode  of  reaching  or  administering 
them  happens  to  be  in  equity;  Rut- 
ledge  V.  Ildzlehurst,  1  M'Cord,  Chan- 
cery, 466;  M'Candlish  v.  Kcene, 
13  G-rattan,  615,  634.  Equity  fol- 
lows the  law,  and  respects  specific 
liens  and  priorities,  even  when  assets 
are  equitable,  and  fall  peculiarly  or 
exclusively  within  its  jurisdiction, 
(^post,  note  to  Silk  v.  Frime,)  and 
should,  therefore,  pursue  the  same 
course  in  the  distribution  of  those 
which  are  legal^  and  would,  but  for 
circumstances,  fall  within  the  reach 
of  legal  process.  We  have  seen  that  the 
case  of  Grecnicood  v.  Taylor,  ante,  209, 
was  questioned  by  Lord  Cottenham  as 
contravening  the  rule,  that  a  creditor 
who  has  two  remedies  or  securities, 
may  pursue  each  as  if  the  other  had 
no  existence,  until  he  succeeds  in  ob- 
taining payment;  and  the  weight  both 
of  authority  and  reason  would  seem 
to  be  in  accordance  with  the  view 
taken  by  his  lordship,  and  adopted  by 
the  courts-  of  Vermont  and  Pennsyl- 
vania. 


SILK     V.     PKIME.  287 


EQUITABLE    ASSETS. 

*SILK  V.  PRIME.  [*82] 

JUNE,  IG,  17,  IT 66.— MARCH  8,  17G8. 
REPORTED   1    BRO.    C.  C.  138,  n.^ 

Equitable  Assets.] — A  devise  of  lands  for  payment  of,  or  charged  with, 
debts,  although  the  persons  to  whom  they  are  devised,  or  tcho  are  directed  to 
sell  them,,  are  executors,  makes  these  lands  assets  in  equity,  to  be  distributed 
among  creditors  j^ari passu. 

Christopher  ThOxMSON,  by  his  will,  dated  27th  December,  1759,  gave 
specific  parts  of  his  personal  estate  to  his  wife  and  two  daughters;  and  after 
reciting  that  he  had,  previously  to  his  intermarriage  with  his  wife,  settled  the 
reversion  of  his  farm-house,  and  lands,  and  premises  in  Outnewton,  in  the 
county  of  York,  after  the  decease  of  his  mother,  to  the  use  of  his  wife  for  life, 
in  ca'se  she  should  survive  him,  with  remainders  over,  and  that  the  mother 
was  then  living ;  therefore  he  gave  to  his  said  wife,  in  case  of  his  death  in  the 
lifetime  of  his  mother,  an  annuity  of  GOl.  during  the  mother's  life,  to  be  paid 
by  his  executors,  and  he  charged  his  messuages  and  premises  wherein  he 
dwelt,  and  his  messuage,  staith,  and  premises  in  the  High-street,  in  Kingston- 
upon-Hull,  and  all  his  estate  there,  with  the  payment  thereof;  and  declared, 
that,  on  the  death  of  his  mother,  the  annuity  should  cease.  And  he  devised 
all  his  lands,  and  premises  purchased  by  him  in  Outnewton  to  his  mother,  her 
heirs,  and  assigns ;  and  he  ordered  and  directed  that  all  his  just  debts  should 
be  paid  ;  and  in  case  his  personal  estate  should,  on  account  of  any  losses,  be 
rendered  not  sufiicient  to  pay  all  his  just  debts,  he  charged  all  his  messuages, 
and  prem,ises,  and  real  estate  whatever,  (except  the  lands  in  Outnewton, 
settled  on  his  marriage,  and  the  lands  devised  *to  his  mother,)  tiuVA  r^oo-i 
the  payment  of  all  his  just  debts.  And  in  case  his  personal  estate  (saye  ^ 
what  he  had  thereby  given  to  his  wife  and  daughters)  should  fall  short  in  pay- 
ment of  all  his  just  debts,  he  directed  that  the  defendants.  Prime  and  Moxon, 
or  the  survivor  of  them,  or  his  heirs,  should  sell  all  his  messuages  and  estate  in 
Kingston-Xipon-Hull,  charged  as  aforesaid,  with  his  messuages  in  Wincomely, 
and  his  close  in  Beverley,  and  all  other  his  real  estate  (except  as  aforesaid,) 
or  such  other  part  or  parts  thereof  as  should,  with  his  personal  estate,  be  suffi- 
cient to  pay  all  his  just  debts,  and  to  apply  the  money  arising  therefrom, 
together  with  the  money  arising  from  his  personal  estate,  for  the  payment  of 
all  his  just  debts.  He  gave  all  the  surplus  money  arising  as  well  from  the 
Sale  of  all  or  any  part  of  his  real  estate,  as  also  from  his  personal  estate,  to  his 

1  S.  C,  1  Dick.  384. 


288  EQUITABLE     ASSETS. 

wife  aud  two  daughters,  and  devised  to  tliem  all  his  estate  which  should  not 
be  sold  for  payment  of  his  debts,  and  appointed  Prime  and  Moxon  execnfors. 
This  cause  was  first  heard  at  the  Rolls,  IGth  and  17th  June  1766,*  when 
the  late  Sir  Thomas  Sewel,  M.  R.,  determined  that  the  assets  arising  from  the 
sale  of  the  estate  were  to  be  considered  as  equitable  assets,  upon  the  ground 
that  the  devise  was  to  the  executors  and  their  heirs,  observing,  at  the  same 
time,  that  it  would  be  otherwise  if  the  devise  had  been  merely  to  the  execu- 
tors. He  said,  by  this  devise  the  descent  was  broken  at  law,  and  the  only 
special  circumstance  was,  that  of  the  trustees  and  their  heirs  taking  the  real 
to'i-ether  with  the  personal  estate.  From  this  decree  there  was  an  appeal  to 
the  Lord  Chancellor,  who,  on  the  8th  of  March,  1768,  affirmed  the  same,  and 
delivered  a  very  elaborate  argument,  to  the  following  purport,  of  which  the 
reporter^  has  been  so  fortunate  as  to  obtain  a  very  accurate  note. 

Lord  Chancellor  Camden. — When  this  appeal  was  argued,  I  thought 
the  question  depended  so  much  upon  the  general  doctrine  of  legal  and  equit- 
able assets,  that  I  desired  time  to  look  into  the  cases,  to  see  what  general 
t  J  *rules  had  been  established  upon  that  subject;  for  all  doubtful  points 
are  decided  by  an  application  of  general  principles  to  the  particular  case. 

Where  trustees  for  the  payment  of  debts  are  made  executors,  the  printed 
cases  had  ruled  the  assets  to  be  legal.^  This  caused  me  to  doubt,  because  I 
had  always  understood  the  doctrine  of  this  Court  was  the  reverse,  and,  there- 
fore, I  thought  it  necessary  to  look  back  to  the  origin  of  this  business,  and  to 
fix  the  principle. 

Where  an  estate  is  devised  to  trustees  for  the  payment  of  debts  generally, 
it  has  long  been  the  constant  practice  of  the  Court  to  pay  all  the  debts  pari 
passu.  This  is  declared  in  the  case  of  Wolestoncro/t  v.  Lun^,  1  Ch.  Ca.  32. 
And  the  same  is  again  laid  down  in  Anon.,  2  Ch.  Ca.  54. 

As  the  money,  in  these  cases,  never  reaches  the  hands  of  the  executors,  no 
action  lay  :  and  the  creditor  was  obliged  to  come  into  this  Court  for  satisfaction. 
Whereupon  equity,  not  being  tied  down  to  the  rule  of  law,  introduced  a  new 
method  of  administration.  And,  seeing  the  testator  had  made  no  distinction 
between  the  difference  of  securities  given  for  the  payment  of  debts,  the  Court 
conceived  that  the  testator  meant  to  do  equal  justice  to  all  his  creditors.  Nor 
did  the  Court,  in  this  respect,  do  any  injury  to  specialty  creditors.  For, 
though  real  estates  are  assets  at  law,  to  pay  such  debts,  yet  the  creditor  might 
be  defeated  by  the  debtor's  will  or  the  heir's  alienation.  So  that,  where  the 
will  had  set  aside  the  law,  equity  would  have  forgot  its  own  principle  of 
equality  by  giving  a  priority,  which  the  testator  had  not  done ;  all  debts  being 
equal  in  conscience.  L'^pon  this  ground,  the  Statute  of  Fraudulent  Devises* 
allowed  devises  for  the  payment  of  debts  to  be  good,  though  the  act  annulled 
every  other  devise  to  the  prejudice  of  specialty  creditors.  This,  I  consider, 
as  a  Parliamentary  approbation  of  equitable  assets,  which,  standing  as  it  does 

1  Sec  the  decree,  2  Coll.  509.  -  Mr.  Brown. 

3  These  cases,  it  will  be  seen,  are  overruled.  •*  3  &  4  Will,  k  M.  c.  14. 


SILK     V.     PRIME.  289 


upon  such  ground  of  justice,  the  testator's  intention,  the  rule  of  equality,  and 
the  sanction  of  the  legislature,  *ought  always  to  preponderate,  in  a  ^^-.^ 
doubtful  case;   and  Sir  Joseph  Jekyll's  opinion,  in  Cox's  case,  3  P.  L    '"'^-' 
Wms.  344,  should  be  always  remembered,  who  said,  ''he  would  always  do  his 
utmost  to  extend  the  rule." 

Where  the  trustee  is  not  executor,  the  case  is  clear. 

Where  the  land  is  charged  with  the  debts,  it  is  clear  likewise.'  But, 
where  the  testator  put  the  trust  into  the  executor's  hands,  there  was  a  consi- 
derable doubt  how  to  distinguish  the  capacities  of  the  two  characters ;  as  exe- 
cutor, the  assets  were  legal ;  as  trustee,  they  were  equitable. 

The  law  had  determined,  that  where  the  land  was  devised  to  be  sold  b}- exe- 
cutors, or  devised  to  executors  to  be  sold,  in  both  cases  the  assets  were  legal. 
In  this  respect,  the  law  made  no  difference  between  the  interest  and  the  power, 
and  that  is  evident.  Any  person  who  will  peruse  Co.  Litt.  112  b.,  113  a., 
with  any  attention,  will  be  of  that  opinion,  and  all  the  cases  in  Roll.  Abr., 
(tit.  "Power  and  Interest.")  under  that  head,  speak  the  same  language. 

These  kind  of  devises  had  been  so  frequent  at  law,  and  the  determinations 
so  uniform,  that  they  seemed,  for  a  time,  to  have  overpowered  the  courts  of 
equity ;  for  I  find  that  almost  all  the  printed  cases  followed  this  rule,  and 
made  the  assets  legal. 

So  is  Girlinr/  v.  Lee,  1  Vern.  G3  ;  Anon.  2  Vern.  133  ;  Greaves  and  FoiceJl, 
2  Vern.  248.  Two  strong  cases  in  Prec.  Ch. ;  Cutterhack  \.  Smith,  Prec. 
Ch.  127  ;  BicJcliam  v.  Freeman,  Prec.  Ch.  136  ;  and  Lord  Mashing  v.  Hard- 
ing, Bunb.  339. 

Lord  King,  in  the  case  of  Walker  and  Meager,  Mos.  204,^  which  I  don't 
well  understand,  avoided  the  point. 

These  authorities  did  perplex  me  exceedingly,  for  I  had,  all  my  time,  taken 
it  for  granted  that  the  rule  here  was  otherwise.  At  last  I  find  this  note  in 
Mr.  Tracey's  book,  Leicin  v.  OMct/,  2  Atk.  50,  July  26th,  1740  :— "  Devise 
to  trustees  for  payment  of  debts,  and  the  same  persons  are  made  executors. 
The  assets,  said  the  Court,  shall,  notwithstanding,  be  equitable  and  not  legal. 
*There  are  cases  in  Vernon  where  it  is  held,  that  debts  in  such  cases  ^  ^op-\ 
shall  be  paid  in  a  course  of  administration,  but  the  modern  resolutions  ^ 

have  been  otherwise." 

I  sent  to  the  Register's  book,  and  find  that  was  the  very  point  of  the  cause  • 
and,  upon  the  Master's  report.  Lord  Hardwicke  determined,  that  the  simple 
contract  and  the  specialty  debts  should  be  paid  pari  passu.  The  words  of  the 
will  were  :  Testator  devised  his  estate  to  A.  and  B.  and  their  heirs,  in  trust 
to  sell  the  same,  and  thereout,  in  the  first  place,  to  pay  his  debts,  and 
appointed  them  executors.  And  now,  I  think,  the  whole  rule  is  overthrown, 
and  that,  wherever  the  land  itself  is  devised  to  the  same  persons,  icho  are  exe- 
cutors, the  assets  will  be  equitable. 

1  Bailey  v.  Ekins,  1  Yes.  319 ;  Shiphard  v.  Lutwidge,  3  Ves.  26. 

2  S.  C,  2  P.  Wms.  550. 
VOL.    II. — 10 


290  EQUITABLE     ASSETS. 


And  I  hold  the  case  to  be  the  same  whenever  the  land  is  devised  to  them 
or  to  them  and  their  heirs ;  for  in  both  cases  they  are  equitable  trustees.  The 
descent  is  broke/  and  the  specialty  creditors  have  lost  their  fund. 

And  I  can  hardly  now  suggest  a  case  where  the  assets  would  be  legal,  but 
where  the  executors  had  a  naked  power  to  sell  qua  executors.^ 

What  I  have  said  show  sthat  this  Court  has  justly  a  partiality  and  predilec- 
tion to  equitable  assets,  which  ought  to  turn  the  scale  in  all  cases  where  the 
matter  hangs  in  equal  balance. 

This  disposition  is,  therefore,  not  improper,  though  it  must  be  admitted, 
that  in  the  present  case,  the  trustees  and  executors  have  no  more  than  a 
naked  power;  for  nothing  is  devised  to  them,  and  therefore,  the  doctrine  I 
have  laid  down  is  not  directly  applicable  to  this  case;  but  two  rules  are 
obtained. 

1st.  It  is  a  good  rule  of  expounding  wills,  to  make  them  speak  in  favor  of 
equitable  assets,  if  it  may  be  done. 

2nd.  That,  if  you  can  lodge  the  assets  in  the  hands  of  the  trustees,  the 
Court  will  never  put  them  in  the  hands  of  the  executors,  and  when  one  person 
is  invested  with  both  characters,  the  trustee  shall  be  preferred. 

^o»-|       *To  come  to  the  case  : — 
^        -^       1st.  The  testator's  will  does  most  emphatically  direct  the  payment 
of  all  his  just  debts. 

I  can  never  think,  that  a  man  who  does,  repeatedly,  and  so  anxiously,  pro- 
vide for  the  payment  of  all  could  ever  mean  by  legal  preference  to  pay  some, 
and  leave  the  rest  unpaid . 

2nd.  The  power  is  lodged,  not  in  executors  solely,  but  in  them  or  tleir  heirs  ; 
and  it  is  clear  that  the  money  could  never  be  assets  in  the  hands  of  the  executors' 
heir,  nor  could  the  creditor  ever  maintain  his  action  against  such  heir.  Nor 
is  it  any  answer  to  this  objection,  to  say,  that  the  wjord  heir  is  inserted  by 
mistake,  or  to  be  resembled  to  those  cases  where  personal  estate  is  given  to  a 
man  and  his  heirs,  or  real  estate  to  a  man  and  his  executors.  In  those  cases 
the  subject-matter  of  the  devise  points  out  the  proper  succession,  and  the 
literal  will  is  nonsense;  but  here  the  word  heirs  has  a  useful  and  proper  mean- 
ing, for  it  converts  the  executor  into  a  trustee,  and  makes  the  assets  equitable, 
which  is  a  favorite  point  in  this  Court. 

But  it  has  been  said,  that  the  testator  has  here  united  both  funds  together 
in  the  hands  of  his  trustees  and  executors,  and  therefore  both  must  be  one 
consolidated  fund,  to  follow  the  same  course  of  administration.  For  the 
words  are,  "  that  they  shall  apply  money  arising  from  the  real  estate,  together 
with  the  moneys  arising  from  his  personal  estate,  to  pay,  &c."  The  answer 
is  that  in  all  cases  where  the  trustee  and  executor  is  one  person,  the  funds 
are  consolidated  in  the  san;c  manner,  for,  out  of  both,  he  is  to  pay  all  his 

J  It  would  be  more  accurate  to  s.iy,  that  it  must  appear  upon  the  will  that  the  testa- 
tor meant  the  descent  to  be  broken ;  per  Lord  Eldon,  7  Yes.  323.     It  is,  however,  now 
clearly  immaterial  whether  the  descent  bo  broken  or  not.     See  note  to  this  case,  post. 
*  Even  in  this  case  the  assets  would  be  equitable.     Sec  note,  post. 
\ 


SILK     V.     PRIME.  291 


debts ;  but  the  course  of  administration  is  different,  and  by  that  very  method 
it  is,  that  the  Court  is  enabled  to  pay  all  the  debts  without  distinction,  as  far 
as  the  assets  will  go,  and  by  marshalling  both  kinds  of  assets,  makes  them 
amicably  combine  to  answer  the  full  intention  of  the  testator. 

3rd.  This  is  the  case  of  a  charge  upon  the  lands.  They  are  devised  to  the 
testator's  wife  and  daughters,  subject  to  this  charge.  In  this  respect  it  is  a 
trust,  and  no  more  to  be  sold  than  what  is  necessary  for  this  purpose.  The 
*power  then  to  sell  is  merely  consequential;  the  testator  having  named  r:i;oQ-i 
the  executor  for  this  purpose,  the  Court  would  have  compelled  the  de-  ''' 
visees.  Whoever  sells  to  satisfy  a  charge,  must  be  a  trustee,  because  a  charge 
is  a  trust. 

To  make  this  still  clearer,  the  rents  and  profits  in  the  hands  of  the  devisees 
are  assets  before  the  sale.  Legal  assets  they  cannot  be,  for  the  executors 
have  no  right  to  receive  them.  They  must,  therefore,  be  equitable  assets. 
And  if  it  be  once  admitted  that  any  one  part  of  the  land  is  equitable  assets, 
the  whole  must  be  the  same,  for  the  trust  is  one  and  the  same  trust  throughout. 

Decree  affirmed.^ 


Silk  v.  Prime,  one  of  the  few  judgments  of  Lord  Camden,  as  Chancellor, 
which  have  come  down  to  us  well  reported,  is  a  leading  authority  on  the  doc- 
trine of  equitahle  assets — a  doctrine  certainly  not  now  so  beneficial  as  it  was 
previous  to  the  recent  enactments  rendering  all  lands  liable  to  debts  by  simple 
contract,  yet  still  of  some  importance,  where  there  are  debts  both  by  specialty 
and  simple  contract,  and  the  assets  are  not  sufl&cient  to  pay  all  the  creditors 
in  full ;  for  there  it  becomes  necessary  to  determine  whether  the  assets  are 
legal  or  equitable,  as,  in  the  former  case,  specialty  creditors  are  entitled  to 
priority ;  in  the  latter  case,  they  will  only  be  paid  pari  passu  with  simple  con- 
tract creditors. 

Distinction  between  Legal  and  Equitahle  Assets. — The  property  of  a  deceased 
person,  which  is  available  at  common  law  for  the  purpose  of  satisfying  his 
creditors,  is  commonly  termed  legal  assets,  and  will  be  applied,  both  at  law 
and  in  equity,  in  the  ordinary  course  of  administration,  which  gives  debts  of 
a  certain  nature  a  priority  over  others;  where,  however,  the  assets  are  such  as 
are  available  only  in  a  court  of  equity,  they  are  termed  equitahle  assets,  and 
according  to  the  well-known  maxim  that  equality  is  equity,  will,  after  satisfy- 
ing those  who  have  liens  on  any  specific  property,  be  distributed  amongst  the 
creditors  of  all  grades  pari  passu,  without  any  regard  to  legal  priority. 

Much  difficulty  has  however  arisen  in  determining  the  precise  distinction 
between  legal  and  equitable  assets.  The  principle  however  by  which  they 
may  be  distinguished  has  in  a  recent  case  been  furnished  by  Sir  R.  T.  Kin- 
dersley,  *V.  C.  "  The  general  proposition,"  observes  his  Honor,  "  is  ^  ^^^^ 
clear  enough,  that  when  assets  may  be  made  available  in  a  court  of  law, 
they  are  legal  assets  ;  and  when  they  can  only  be  made  available  through  a 

1  See  2  Coll.  511. 


292  EQUITABLE     ASSETS. 


court  of  equity,  they  are  equitable  assets.  This  proposition  does  not,  however, 
refer  to  the  question  whether  the  assets  can  be  recovered  by  the  executor  in  a 
court  of  law  or  in  a  court  of  equity.  The  distinction  rtfcrs  to  the  remedies  of 
the  creditor,  and  not  to  the  nature  of  the  property.  The  question  is  not 
whether  the  testator's  interest  was  legal  or  equitable,  but  whether  a  creditor 
of  the  testator,  seeking  to  get  paid  out  of  such  assets,  can  obtain  payment 
thereout  from  a  court  of  law,  or  can  only  obtain  it  through  a  court  of  equity. 
This  I  apprehend,  is  the  true  distinction.  If  a  creditor  brings  an  action  at 
law  against  the  executor,  and  the  executor  pleads  ^>/e«e  administravit,  the 
truth  of  the  plea  must  be  tried  by  ascertaining  what  assets  the  executor  has 
received ;  and  whatever  assets  the  court  of  law,  in  trying  that  question,  would 
charge  the  executor  with,  must  be  regarded  as  legal  assets ;  all  others  would 
be  equitable  assets.  Supposing,  however,  that  distinction  to  be  well  founded, 
there  still  remains  the  question,  what  property  come  to  the  hands  of  the  exe- 
cutor would  a  court  of  law  consider  property  to  be  taken  into  account  as  assets, 
in  trying  the  truth  of  the  plea  plene  administravit.  I  think  the  general  prin- 
ciple is,  that  a  court  of  law  would  treat  as  assets  every  item  of  property  come 
to  the  hands  of  the  executor  which  he  has  recovered,  or  had  a  right  to  recover, 
merely  virtute  oflBcii,  i.  e.  which  he  would  have  had  a  right  to  recover  if  the 
test-itor  had  merely  appointed  him  executor,  without  saying  anything  about 
his  property  or  the  application  thereof."     (3  Drew.  549.) 

Legal  Assets. — Legal  assets,  then,  are  such  parts  of  the  property  of  a  de- 
ceased person  as  may  be  reached  or  made  available  by  an  executor,  simply  vir- 
tute officii. 

There  is  no  doubt  that  personal  estate,  including  leaseholds,  are  legal  assets. 
Since  the  question  whether  assets  are  legal  or  equitable,  depends  upon  this, 
not  whether  the  property  of  which  they  consist  is  legal  or  equitable,  but 
whether  an  executor  can  recover  them  virtute  officii,  it  has  been  held  that  an 
equity  of  redemption  of  a  sum  of  money  charged  on  land  is  legal  assets  :  Cook 
V.  Gregson,  3  Drew.  547. 

Upon  the  same  principle,  in  the  recent  case  of  Shee  v.  French,  (3  Drew. 
716,)  where  a  reversionary  annuity  granted  to  the  wife  of  the  testator  in  con- 
sideration of  an  assignment  of  his  business  and  stock  in  trade,  had  been  deter- 
mined by  the  Lord  Chancellor  to  be  assets  for  payment  of  his  creditors,  the 
'  ^  ^-.  transaction  coming  within  the  statute  *13  Eliz,  c.  5,  (see  French  v. 
L  -■  French,  6  De  G.  Mac.  &  G.  95,)  it  was  held  by  Sir  R.  T.  Kindersley, 
V.  C,  that  such  annuity  was  legal  assets  in  the  hands  of  the  wife,  who  was 
executrix,  for  the  payment  of  the  creditors.  ''  What,"  said  his  Honor,  '*  was 
the  effect  on  the  death  of  the  testator !  No  doubt  the  annuity  was  payable  to 
the  wife  :  but  if  it  was  not  paid,  who  could  sue  the  grantor  of  the  annuity  at 
law  ?  If  the  wife  had  not-becn  herself  executrix,  an  action  on  the  agreement 
must  have  been  brought  in  the  name  of  the  executor;  the  legal  right  to  reco- 
ver was  in  the  executrix  (jua  executrix.  It  appears  then  to  mc,  that  what  the 
Lord  Chancellor  has  decided  has  this  effect,  that  though  the  grant  of  the 
annuity  is  valid,  it  is  to  be  regarded  as  a  settlement  by  the  testator  on  his 


SILK     V,      PRIME.  293 


wife,  and  to  that  extent  it  is  absolutely  void,  and  her  beneficial  interest  is  gone, 
as  if  it  had  never  been  given ;  then,  after  the  death  of  the  testator,  the  legal 
right  to  recover  it  vested  in  his  executrix  qua  executrix;  and  when  it  has 
been  determined  that  the  grant  of  the  beneficial  interest  is  avoided,  it  remained 
vested  in  the  executrix  for  the  benefit  of  the  testator's  creditors." 

By  the  common  law,  real  estates  descended,  (except  copyholds ;)  and  by  29 
Car.  2,  c.  3,  s.  10,  trust  estates  in  the  hands  of  the  heir  of  cestui  que  trust, 
were  liable  as  legal  assets  to  debts  by  specialty,  but  not  to  debts  by  simple 
contract.  Copyholds  were  not  liable  even  to  specialty  debts.  And  with  regard 
to  other  real  estates,  if  the  heir  aliened  before  action  brought,  or  if  they  were 
devised,  unless  for  payment  of  debts,  they  were  not  liable  even  to  specialty 
debts.  A  person,  therefore,  however  large  his  landed  possessions  were,  might 
have  defrauded  his  creditors  by  devising  his  property  away  from  his  heir. 

The  injustice  wrought  by  this  state  of  the  law  was  at  length,  in  the  year 
1691,  in  part  remedied  by  3  &  4  Will.  &  M.  c.  14,  commonly  called  the  Statute 
of  Fraudulent  Devises,  which  enacted,  that  devises,  unless  for  payment  of 
dehts,  should  be  treated  as  fraudulent  and  void  as  against  sijecialty  creditors; 
that  the  devisee  should  be  liable  jointly  with  the  heir  on  a  specialty  recoverable 
by  action  of  debt ;  and  that,  if  descended  real  estate  were  aliened  by  the  heir, 
he  should  be  liable  to  the  extent  of  its  value. 

To  Sir  Samuel  Romilly  the  country  is  indebted  for  another  Act,  tending 
further  to  improve  the  state  of  the  law,  viz.  47  Gleo.  3,  c.  74,  which  rendered 
the  freehold  estates  of  a  person  who,  at  the  time  of  his  death,  was  subject  to 
the  bankrupt  laws,  liable  to  simple  contract  debts :  Hitchon  v  Bennett,  4  Madd. 
180.  These  Acts  were  repealed,  and,  with  some  modifications,  re-enacted  by 
1  Will.  4,  c.  47  ;  but  it  was  not  until  of  late  years  that  the  *Legisla-  r  xiqi-i 
ture,  conceding  the  full  measure  of  justice  sought  by  Sir  Samuel  Ro- 
milly,  enacted  by  3  &  4  Will.  4,  c.  104,  (commonly  called  Sir  John  Romilly's 
Act,  which  received  the  Royal  assent  the  29th  of  August,  1833,)  that  from 
and  after  the  passing  of  the  Act,  when  any  person  should  die  seised  of  or  entitled 
to  any  estate  or  interest  in  lands,  tenements,  or  hereditaments,  corporeal  or 
incorporeal,  or  other  real  estate,  whether  freehold,  customary  hold,  or  copy- 
hold, which  he  shall  not  hj  his  last  icill  have  charged  with  or  devised,  subject 
to  the  payment  of  Ms  debts,  the  same  shall  be  assets  to  be  administered  in 
courts  of  equity  for  the  payment  of  the  just  debts  of  such  persons,  as  well  debts 
due  on  simple  contract  as  on  specialty;  and  that  the  heir  or  heirs  at  law,  cus- 
tomary heir  or  heirs,  devisee  or  devisees  of  such  debtor,  shall  be  liable  to  all 
the  same  suits  in  equity  at  the  suit  of  any  of  the  creditors  of  such  debtor, 
whether  creditors  by  simple  contract  or  by  specialty,  as  the  heir  orheirs-at-law, 
devisee  or  devisees  of  any  person  or  persons  who  died  seised  of  freehold  estates, 
was,  or  were  before  the  passing  of  the  Act,  liable  to  in  respect  of  such  freehold 
estates,  at  the  suit  of  creditors  by  specialty  in  which  the  heirs  were  bound : 
Provided,  always,  that,  in  the  administration  of  assets  by  courts  of  equity  under 
and  by  virtue  of  the  Act,  all  creditors  by  specialty,  in  which  the  heirs  are 
bound,  shall  be  paid  the  full  amount  of  the  debts  due  to  them  before  any  of 


294  EQUITABLE     ASSETS. 

the  creditors  by  simple  contract  or  by  specialty  in  which  the  heirs  are  not 
bound,  shall  be  paid  any  part  of  their  demands.     And  see  11  &  12  Vict.  p.  87. 

It  has  been  held  that  this  Act  of  itself  makes  the  equity  of  redemption  of  a 
mortgage  in  fee  legal  assets:  Foster \.  Handlei/,  1  Sim.  N.  S.  200;  15  Jur.  73. 

xVnd  real  estate  of  a  person  who  has  died  without  heirs  is,  against  the  lord 
claiming  by  escheat  assets  for  payment  of  his  debts,  although  not  charged  with 
debts  by  will :  see  Evans  v.  Brown,  5  Beav.  114 ;  Hughes  v.  Wells,  9  Hare,  749. 

It  will  also  be  observed,  that  the  a\ct  retains  the  priority  which  creditors  by 
specialty  in  which  the  heirs  were  bound,  had  over  those  in  which  they  were 
not  bound  :  Richardson  v.  Jenkins,  1  Drew.  477. 

Ordinary  course  of  Administration  of  Legcd  Assets. — After  the  payment 
of  funeral  and  testamentary  expenses,  (Wms.  Exors.  890,  5th  edit.,)  and  of  a 
creditor's  suit,  if  the  assets  are  administered  in  equity,  {Blewett  v.  Jessop,  Jac. 
240,)  debts  will  be  payable  at  law  and  in  equity,  if  the  assets  are  legal,  in  the 
following  order,  (see  Wms.  Exors.  893,  et  seq.,  5th  edit. : — ) 

1.  Debts  due  to  the  Crown  by  record  or  specialty,  which  are  entitled  to  pre- 

cedence over  debts  of  whatever  nature,  as  well  of  a  *prior  as  a  subse- 
-I  quent  date  :  Magna  Charta,  c.  18 ;  2  Inst.  32 ;  Littleton  v.  Hibhins, 
Cro.  Eliz.  793;  Swinb.  Pt.  6,  s.  16;  Com.  Dig.  "  Admon."  (C.  2.) 

2.  Debts  to  which  particular  statutes  give  priority,  as  money  due  to  a  parish 
by  overseers  of  the  poor,  (17  Greo.  2,  c.  38,  s.  3;)  or  by  the  officers  of  a  friendly 
society  to  the  society.  See  33  Geo.  3,  c.  54,  repealed  by  10  Geo.  4,  c.  56. 
But,  by  stat.  4  &  5  Will.  4,  c.  20,  s.  14,  the  provisions  of  the  repealed  Act 
will  continue  in  force  as  to  all  societies  established  under  it  before  the  passing 
of  10  Geo.  4,  c.  56 ;  debts  due  by  an  officer  to  his  regiment :  58  Geo.  3,  c. 
73,  ss.  1  &  2.  See,  also,  2  Will.  4,  c.  53,  as  to  army  prize  money;  debts  due 
from  a  deceased  treasurer  or  collector  of  paving  commissioners  under  57  Geo. 
3,  c.  29,  s.  51. 

3.  Judgments  in  courts  of  record,  and  decrees  in  equity  [rateably,  except 
judgment  obtained  against  an  executor,  which  are  payable]  according  to  their 
priorities  inter  se :  Dollond  v.  Johnson,  2  Sm.  &  G.  301 ;  Revell  v.  Revell,  5 
Ir.  Ch.  Rep.  284 ;  Burke  v.  Killikelli/,  1  Ir.  Ch.  Rep.  1. 

4.  Recognizances  and  statutes. 

5.  Debts  by  special  contract,  as  on  bonds,  covenants,  and  other  instruments 
under  seal,  for  valuable  consideration  :  Pinchon's  case,  9  Co.  88,  b.  A  debt 
for  rent  ranks  in  the  same  degree  as  a  debt  by  obligation,  or  other  instrument 
under  seal:  Com.  Dig.  "  Admon."  (C.  2;)  except  where  it  is  claimed  for 
lands  out  of  England  :  Vincent  v.  Godson,  4  De  G.  Mac.  &  G.  546;  Barker  v. 
Darner,  Carthew,  182. 

6.  Debts  by  simple  contract,  as  on  bills  or  notes  and  contracts  not  under 
seal,  on  verbal  promises,  or 'on  promises  implied  at  law. 

7.  Voluntary  bonds,  (Jiamsdcn  v.  Jackson,  1  Atk.  294 ;  but  in  the  admi- 
nistration of  assets,  a  voluntary  bond  is  to  be  preferred  to  interest  upon  debts 
not  by  law  carrying  interest,  payable  under  the  4Gth  Order  of  August,  1841  : 
Garrard  v.  Lord  Linorlcn,  5  Hare,  213. 


SILK     V.     PRIME.  205 


Eqiiitahh  Asset. — Equitable  assets  are  of  two  kinds, — the  first  are  created 
by  the  act  of  the  testator,  by  charging  or  devising  his  land  for  payment  of 
debts.  The  second  are  such  as  are  not  attainable  by  the  executor  virtute 
officii,  and  are  solely  available  in  equity. 

As  to  the  first  kind  af  Equitahle  Assets. — It  was  held,  by  Lord  Camden,  in 
the  principal  case,  contrary  to  what  was  formerly  supposed  to  be  the  casie,  that 
lands,  although  devised  to  executors  as  trustees,  in  payment  of  debts,  were 
equitable,  and  not  legal  assets;  and  see  Xeicton  v.  Bennet,  1  Bro.  C.  C  135, 
188. 

And  although  at  one  time  it  appears  to  have  been  considered  necessary  that 
the  descent  should  be  broken  by  a  devise  from  the  heir,  {Freemoult  v.  Dedire, 
1  P.  *Wms.  430 ;  Flunhet  v.  Penson,  2  Atk.  293  :)  it  has  been  clearly 

.  ...  r*o.3l 

established,  that  whether  lands  are  devised  to  the  heir,  (in  which  case  L  '  -■ 
he  formerly  took  by  descent,)  charged  with  debts,  or  whether  they  descend  to 
him  so  charged,  in  either  case  they  are  equitable  assets  :  see  Hargrave  v.  Tln- 
dal,  1  Bro.  C.  C.  136,  n. ;  Batson  v.  Lindegreen,  2  Bro.  C.  C.  94;  Bailey  v. 
Ekins,  7  Ves.  319,  322;  Shij)7iard  v.  Lutwidge,  8  Ves.  26.  Lord  Camden, 
in  the  principal  case,  seems  to  have  thought  that  the  assets  would  be  legal, 
where  the  executor  had  a  naked  power  to  sell  qua  executor.  It  is,  however, 
now  clearly  settled,  that  they  would  be  equitable :  \_Iioss  v.  Barclay,  6  Harris, 
179,  184.]     See  note  by  Sanders,  1  Atk.  420,  and  cases  there  cited. 

There  is,  however,  an  important  distinction  between  an  express  devise  or 
appropriation  of  lands  for  the  payment  of  debts,  and  a  mere  charge  of  debts  ; 
for,  in  the  first  case,  they  will  be  applicable  in  payment  of  debts  before  lands 
descended ;  but  in  the  second  case,  they  are  applicable  only  after  the  assets 
arising  from  lands  expressly  devised  for  payment  of  debts,  and  lands  descended 
not  charged  with  debts,  have  been  exhausted  :  Harmood  v.  Oglander,  8  Ves. 
124,  125  ;  Donne  v.  Lewis,  2  Bro.  C.  C.  257. 

A  devise  of  part  of  a  testator's  estate  for  payment  of  debts  will  be  within 
the  benefit  of  the  proviso  in  the  Statute  of  Fraudulent  Devises,  if  that  part 
prove  sufficient  for  the  purpose ;  but  it  will  be  fraudulent  and  void  as  against 
specialty  creditors,  if  it  be  insufficient;  see  Hughes  v.  Doidhin,  2  Cox,  170, 
where  Lord  Thurlow  observed,  that  whenever  such  a  case  came  before  him, 
he  would  refer  it  to  the  Master,  to  state  to  him,  whether,  according  to  the 
mode  prescribed  by  the  testator,  the  debts  could  be  paid  ;  and  if  the  Master 
told  him  that  the  debts  could  not  be  paid  by  that  mode,  he  would  consider 
that  as  a  fraudulent  devise  until  he  was  controlled  by  the  House  of  Lords  :  S. 
C,  2  Bro.  C.  C.  614. 

A  devise  will  be  fraudulent  if  it  be  not  for  payment  of  all  debts.  Thus, 
where  R.  had  devised  a  great  part  of  his  real  estate  in  trust  for  the  payment 
of  all  his  debts,  except  such  as  he  had  contracted  by  being  bound  as  surety  for 
H.,  Lord  Hardwicke  held,  that,  as  the  devise  was  not  for  the  payment  of  all 
the  testator's  debts  generally,  the  case  was  not  within  the  benefit  of  the  proviso 
of  the   Statute  of  Fraudulent  Devisees  :    Yernon  v.   Yaudrey,  Barnard.  Ch. 


296  EQUITABLE     ASSETS. 


Rep.    280,   304.     See,   however,    Gott  v.   Atkinson,   Willes,    11.    524;    and 
Richardson  v.  Horton,  7  Beav.  12-3. 

So,  if  a  person  devises  one  estate  to  A.  B.,  in  fee,  charged  witli  payment  of 
one  fifth  of  his  debts,  and  another  to  C.  D.  in  fee,  charged  with  the  payment  of 
*Q  1-1  the  other  four-fifths,  such  devises  are  *uot  within  the  proviso  of  the  Sta- 
tute  of  Fraudulent  Devises  ;  that  is  to  say,  they  are  not  such  a  provision 
for  the  payment  of  debts  as  to  make  the  devised  estates  wholly  or  partially  equi- 
table assets  :  Lrjon  v.  Colvile,  1  Coll.  473.  But  a  direction  in  a  will,  to  pay 
simple  contract  before  specialty  creditors,  is  within  the  proviso  in  the  Statute 
of  Fraudulent  Devises,  the  words  of  the  proviso  being  satisfied  by  the  direction 
being  for  the  payment  of  all  debts  :  MUlar  v.  Horton,  Gr.  Coop.  45. 

The  remedy  given  to  specialty  creditors  by  3  &  4  Will.  &  M.  c.  14,  was 
held  to  be  confined  to  cases  in  which  an  action  of  debt  lay  upon  specialties 
securing  a  sum  certain,  due  in  the  testator's  lifetime  :  Wilson  v.  Knuhley,  7 
East,  128  ;  Farley  v.  Briant,  5  N.  &  M.  42  ;  but  see  Jenkins  v.  Briant,  6 
Sim.  003.  This  deficiency  was  supplied  by  1  Will.  4,  c.  47  )  but,  independent 
of  this  Act,  courts  of  equity  held,  that  a  charge  of  debts  would  comprise 
damages  for  a  breach  of  a  covenant  after  the  testator's  death :  Lomas  v.  Wright, 
2  My.  &  K.  775  ;  Morse  v.  Tucker,  5  Hare,  79;  Eardley  v.  Owen,  10  Beav. 
572. 

A  direction  that  the  produce  of  real  estate  shall  form  part  of  the  personal 
estate,  will  not,  in  cases  within  the  exception  of  the  statute,  convert  it  into 
legal  assets.  This  seems  to  have  been  the  opinion  of  Lord  Camden,  in  the 
principal  case,  and  in  Soames  v.  Robinson,  1  My.  &  K.  500,  where  a  testator 
devised  his  real  estate  to  trustees  and  their  heirs,  upon  trust  to  sell,  and  after 
declaring  his  will  to  be  that  the  clear  money  arising  from  such  sale  should 
sink  into  and  become  part  of  his  personal  estate,  he  gave  and  bequeathed  the 
same,  and  all  his  stock,  crops,  goods,  and  eff'ects  whatsoever,  to  the  same  trus- 
tees, their  executors  and  administrators,  upon  trust  after  converting  the  same 
into  money,  and  paying  all  his  debts,  funeral  and  testamentary  expenses,  to 
pay  legacies,  and  dispose  of  the  residue.  It  was  held,  by  Sir  John  Leach, 
M.  B.,  that  this  was  substantially  a  devise  of  the  real  estate  for  the  payment 
of  all  debts,  and  was,  by  the  4th  section  of  the  Statute  of  Fraudulent  Devises, 
good  against  the  specialty  creditors,  and  converted  the  produce  into  equitable 
assets.    See  also  Shakels  v.  Richardson,  2  Coll.  31. 

Where,  however,  the  sale  for  payment  of  debts  is  directed  not  by  the  t(?s- 
tator,  but  by  the  Court,  although  the  purchase  money  is  paid  into  Court,  it 
will  be  legal  assets.     See  Lovegrove  v.  Cooper,  2  Sm.  k  Gifi".  271. 

It  may  be  remarked,  that  the  late  Act  of  3  &  4  Will.  4.  c.  104,  applies 
only  to  estates  which  the  testator  has  not  charged  with,  or  devised  sidg'cct  to, 
the  payment  of  his  debts  ;  the  distinction,  therefore,  between  estates  subjected 
P^Qr-i  to  the  payment  of  debts  by  the  will  *of  the  debtor,  and  estates  sub- 
ject  to  debts  by  the  operation  of  law,  remains  precisely  as  it  was  before 
the  Act.  Thus,  although  all  tlio  real  estates  of  a  person  are  now  by  law  (the 
specialty  debts  being  entitled  to  priinity)  liable  to  his  debts  by  specialty  and 


SILK     V.      PRIME.  297 


simple  contract,  yet,  if  be  devises  them /or,  or  charges  them  with,  tlie  payment 
of  his  debts,  tbey  will  still  be  equitalle  assets,  and,  as  such,  distributable  among 
his  creditors  pari  passu.  See  Ball  v.  Harris,  4  My.  &  Cr.  2G8,  209,  where  a 
typographical  error,  in  Mirehouse  v.  Scaife,  2  My.  &  Cr.  708,  is  corrected. 

It  seems  difficult  to  conceive  upon  what  principle  the  order  in  which  the 
specialty  and  simple  contract  creditors  are  to  be  paid  should  in  any  case  now 
depend  upon  the  will  of  the  debtor.  If  specialty  creditors  ought  in  justice  to 
be  paid  before  simple  contract  creditors,  why  should  it  be  left  in  his  power  to 
put  them  both  upon  a  level  ?  If,  on  the  other  hand,  they  ought  to  be  paid 
pari  passu,  why  was  it  not  at  once  so  enacted,  and  their  position  rendered  in- 
dependent of  accident  or  caprice?  Under  the  old  law,  as  observed  by  Lord 
Camden,  in  the  principal  case,  no  injury  was  done  by  the  Court  to  specialty 
creditors ;  for  though  real  estates  were  assets  at  law  to  pay  such  debts,  yet 
they  might  then  be  defeated  by  the  debtor's  will,  or  the  heir's  alienation.  So 
that,  where  the  will  set  aside  the  law,  equity  would  have  forgotten  its  own 
principle  of  equality,  by  giving  a  priority  which  the  testator  had  not  done,  all 
debts  being  equal  in  conscience.  This  reasoning,  however,  is  not  applicable 
under  the  new  law,  where  real  estates,  although  devised,  are  liable  to  debts 
both  by  specialty  and  simple  contract. 

Real  estates  in  the  West  Indies  cannot  since  statute  5  Geo.  2,  c.  7,  s.  4, 
(which  made  real  estates  in  the  West  Indies  legal  assets,)  be  devised  so  as  to 
make  them  equitable  assets.  See  Turner  v.  Co,x,  8  Moo.  P.  C.  C.  288,  over- 
ruling Charlton  v.  Wright,  12  Sim.  274.  [It  is  said  in  M'Candlish  v.  Keene, 
13  Grattan,  G15,  634,  on  the  authority  of  Charlton  v.  Wright,  12  Sim.  274, 
that  when  a  testator  by  will  charges  his  real  estate  with  his  debts,  the  real 
estate  so  charged  will  be  equitable  assets,  notwithstanding  it  would  have 
rendered  it  liable  by  statute  if  there  had  been  no  such  charge.] 

What  amounts  to  a  Charge  of  Debts. — In  order  to  prevent  the  injustice 
which,  previously  to  the  late  enactments,  would  have  resulted  to  creditors,  in 
consequence  of  a  testator  neglecting  to  charge  his  debts  upon  his  real  estate, 
Courts  of  equity  have,  by  straining  the  ordinary  mode  of  construction,  laid  it 
down  as  a  rule,  that  a  mere  general  direction  ly  a  testator,  that  his  debts 
should  he  paid,  effectually  charges  them  upo7i  his  real  estate]  [Gaw  v.  Hoffman, 
12  Grattan,  G28,  033.]  A  leading  case  upon  this  subject  is  Legh  v.  Earl  of 
Warrington,  1  Bro.  P.  C.  511,  Toml.  ed.,  in  which  a  testator  commenced  his 
will  thus : — "  As  to  my  worldly  estate  which  it  hath  pleased  God  to  bestow 
upon  me,  I  give  and  dispose  thereof  in  manner  following :  (that  is  to  say,) 
"^Imprimis,  I  will  that  all  my  debts  which  I  shall  owe  at  the  time  of  ^  ^f.p-, 
my  decease,  be  discharged  and  paid  out  of  my  estate;"  and  he  then  ^  ^ 
disposed  of  his  real  and  personal  estate,  charging  the  former  with  an  annuity. 
It  was  contended,  that  these  were  merely  introductory  words,  and  did  not  in- 
dicate an  intention  to  charge  the  real  estate.  But  the  House  of  Lords,  affirm- 
ing a  decree  of  Lord  King,  held  the  real  estate  to  be  charged  j  see  also  Earl 
of  Godolphin  v.  Penneck,  2  Ves.  271 ;  Kentish  v.  Kentish,  S  Bro.  C.  C.  257; 
Kighflry  V.  Kightley,  2  Ves.  jun.  328  ;  Shallcross  v.  Einden,  3  Yes.  738  ; 


298  EQUITABLE     ASSETS. 

Williams  v.  Chitfi/,  3  Ves.  545  ;  Clifford  y.  Lewis,  6  Madd.  33  ;  Ballx.  Harris, 
8  Sim.  485;  S.  C,  4  My.  &  Cr.  264  ;  Shaic  v.  Borrer,  1  Keo.  559  ;  Parker  v 
3Iarchant,  1  Y.  &  C.  C.  C.  2d0 ;  JIardivff  y.  Gradi/,  1  J).  &  War.  430  : 
Gosling  v.  Carter,  1  Coll.  644.     [See  ante,  267.] 

Ill  Clifford  V.  Lewis,  6  Madd.  33,  Sir  John  Leach  considered  it  to  be  of 
importance  that  the  expression  with  which  a  testator  commences  his  will, 
should  import  a  general  and  primary  purpose  that  the  payment  of  his  debts 
should  precede  the  subsequent  dispositions  which  he  makes  of  his  property,  as 
in  Finch  y.  Uatterslcy,  (cited  7  Ves.  211,  stated  3  Russ.  345  n.,)  where  the 
will  begins,  "  First,  I  direct  my  debts  to  be  paid ;"  and  in  Legh  y.  Earl  of 
Warrington,  1  Bro.  PC.  511,  Toml.  ed.,  "  Imjyrimis,  I  direct  my  debts  to 
be  paid."  And  see  Douce  v.  Ladi/  Torrington,  2  My.  &  K.  600,  and 
Ronalds  v.  Fcltham,  1  T.  &  R.  418 ;  but  in  Graves  v.  Graves,  8  Sim.  55, 
the  correct  view  appears  to  be  taken  by  Sir  L.  Shadwell,  V.  C.  ''  I  do  not 
think,"  observed  his  Honor,  "  that  the  charge  is  made  to  rest  on  the  mere  cir- 
cumstance, that  the  testator  has  used  the  words  '  imprimis,  or  '  in  the  first 
place ;'  for  if  a  testator  directs  his  debts  to  be  paid,  is  it  not,  in  effect,  a  direc- 
tion that  his  debts  shall  be  paid  in  the  first  instance  ?"  And  see  Irwin  y.  Iron- 
monger, 2  Russ.  &  My.  531. 

And  even  where  there  is  no  devise  or  mention  of  realty,  it  will,  never- 
theless, in  the  hands  of  the  heir,  be  converted  into  equitable  assets  by  a  gene- 
ral charge  of  debts.  "  I  am  very  clearly  of  opinion,"  says  Lord  Alvanley, 
'^  that  wherever  a  testator  says  his  debts  shall  be  paid,  that  will  ride  over 
every  disposition,  either  as  against  his  heir-at-law  or  devisee  :"  Shallcross  v. 
Finden,  3  Ves.  739. 

There  appear,  however,  to  be  two  exceptions  to  the  rule ;  first,  where  the 
testator,  after  a  general  direction  for  payment  of  his  debts,  has  specified  a  par- 
ticular fund  for  the  purpose ;  "  because  the  general  charge  by  implication  is 
controlled  by  the  specific  charge  made  in  the  subsequent  part  of  the  will  :" 
Thomas  v.  Britnell,  2  Ves.  313  ;  Palmer  v.  Graves,  1  Kee.  545. 
r  *Q71  *^^*  t^G  general  charge  will  not  be  affected  by  a  subsequent  charge 
on  the  1-es id uari/  personal  estate,  as  the  presumption  in  favor  of  charges 
for  the  benefit  of  creditors  cannot  be  repelled  by  anything  short  of  clear  and 
manifest  evidence  of  a  contrary  intention  :  Price  y.  North,  1  Ph.  85 ;  Graves 
V.  Graves,  8  Sim.  43.  See,  also,  Taylor  v.  Taylor,  6  Sim.  246  ;  Forster  v. 
Thompson,  4  D.  &  War.  303;  Cross  v.  Kcnnington,  9  Beav.  150;  Dormay 
V.  Borradaile,  10  Beav.  263. 

An  express  charge,  however,  will  not  be  affected  by  the  appropriation  of 
particular  lands  for  the  purpose  of  paying  debts,  {Ellison  v.  Airey,  2  Ves. 
568;  Coxcy.  Basset,  3  Ves.  155;)  or  a  qualified  charge  in  the  same  will, 
{Crallan  v.  Oulton,  3  Beav.  J;  Jones  v.  Williams,  1   Coll.  156,  160.) 

The  second  exception  seems  to  be,  where  the  debts  are  directed  to  be  paid 
hy  executors ;  for,  in  that  case,  it  will  be  presumed,  unless  land  be  devised  to 
them,  that  the  debts  are  to  be  paid  exclusively  out  of  the  assets  which  come 
to  them  as  executors :  Brydgcs  v.  Landcn,  cited  3  Ves.  550;  3  Russ.  345,  n.; 


SILK     V.     PRIME.  299 


Keeling  v.  Broicn,  5  Ves.  359 ;  Fowell  v.  Rohms,  7  Ves.  209 ;  Willan  v. 
Lancaster,  8  Russ.  108;  Braithwaltey.  Britain,  1  Kee.  20G;  Wisden^r.  Wis- 
den,  2  Sm.  &  Giff.  396;  {Gaio  v.  Hoffman,  12  Grattan,  628,  634.] 

Where,  however,  the  executors  are  devisees  of  the  real  estate,  that  presump- 
tion does  not  arise  and  the  lands  devised  to  them  will  be  equitable  assets 
{Finch  V.  Ilattcrdcij,  3  Russ.  345,  n.  ;  Awhrey  v.  Middleton,  2  Eq.  Ca.  Ab. 
497,  pi.  IG;  Alcocli  v.  SparhawJc,  2  Vern.  228;  Barher  v.  DuJie  of  Devon 
shire,  3  Mer.  310;  Henvelly.  Whitaker,  3  Russ.  343;  Dover  v.  Gregory,  10 
Sim.  396,  399;  Dormay  v.  Borradaile,  10  Beav.  263;  Cross  v.  Kennington, 
9  Beav.  150  ;  Harris  v.  Wathins,  Kay,  438 ;  Gallimore  v.  Gill,  2  Sm.  &  Giff. 
158 ;  overruling  Parker  v.  Fearnley,  2  S.  &  S.  592,)  Secus,  where  after  a 
general  direction  that  the  debts  should  be  paid  to  the  executors  there  is  a  de- 
vise of  real  estate  to  one  of  them  only,  {Keeling  v.  Brown,  5  Ves.  359  ;  War- 
ren V.  Davics,  2  My.  &  K.  49 ;  Wasse  v.  Heslington,  3  My.  &  K.  495,)  unless 
the  testator  otherwise  shows  his  intention  that  the  real  estate  should  be  charged, 
as  where  the  devise  to  one  of  the  executors  after  a  general  charge  of  debts  is 
made  "subject  as  aforesaid."     Dowling  v.  Hudson,  17  Beav.  248. 

Where  the  charge  of  debts  is  a  mere  matter  of  form,  inserted  without  any 
view  to  the  regulation  of  the  enjoyment  or  distribution  of  the  testator's  pro- 
perty, and  it  is  manifest,  from  the  whole  will,  that  the  testator  did  not  intend 
to  subject  the  real  estate  given  to  his-executors  to  debts,  it  will  not  be  equitable 
assets :  Symons  v.  James,  2  Y.  &  C.  C.  C.  301.  See  remarks  on  this  case  in 
Harris  v.  Watkins,  Kay,  447. 

*As  to  whether  the  expressions  which  are  sufficient  to  charge  real 
estate  with  debts  will  also  charge  legacies,  see  Davis  v.  Gardiner,  2  ^  *^  J 
P.  Wms.  187;  KigMey  v.  Kiglitley,  2  Ves.  Jun.  328 ;  Williams  v.  Chitty,  3 
Ves.  551 ;  Keelii^g  v.  Brown,  5  Ves.  361 ;  Smith  v.  Butler,  1  J.  &  L.  692  ; 
Cole  V.  Turner,  4  Russ.  376 ;  3Iirehouse  v.  Scaife,  2  My.  &  Cr.  695 ;  Nyssen 
V.  Gretton,  2  Y.  &  C.  Exch.  Ca.  222;  Francis  v.  Clemoiv,  Kay,  435;  Harris 
V.  Watkins,  lb.  438 ;   Gallimore  v.  Gill,  2  Sm.  &  Giff.  158.     [Ante,  267.] 

A  direction  to  raise  money  for  payment  of  debts  out  of  rents  and  profits  of 
real  estate,  will  be  an  effectual  charge  of  debts  within  the  provision  of  the 
Statute  of  Fraudulent  Devises,  as  it  will  authorize  the  sale  and  mortgage  of 
the  estate  for  that  purpose.  "  I  have  understood  it,"  observes  Lord  Eldon, 
"  to  be  a  settled  rule,  that  where  a  term  is  created  for  the  purpose  of  raising 
money  out  of  the  rents  and  profits,  if  the  trusts  of  the  wil!  require  that  a  gross 
sum  should  be  raised,  the  expression  '  rents  and  profits'  will  not  confine  the 
power  to  the  mere  annual  rents,  but  the  trustees  are  to  raise  it  out  of  the  estate 
itself,  by  sale  or  mortgage  :"  Booth  v.  Blundell,  1  Mer.  232. 

A  charge  by  a  testator  of  debts  which  he  has  contracted,  will  also  include 
those  which  he  owes  at  the  time  of  his  death  :  Bridgeman  v.  Dove,  3  Atk. 
201 ;  Brudenell  v.  Boughton,  2  Atk.  274. 

Where  a  person  has  a  direct  lien  upon  the  land,  as  mortgagee  or  other- 
wise, (  Wolestonecro/t  v.  Long,  1  Ch.  Ca.  32;  Anon.,  2  Ch.  Ca.  54;    Child  v. 


300  EQUITABLE     ASSETS. 

Stephens,  1  Yern.  101,  103  ;)  or  as  judgment-creditor,  (1  &  2  Vict.  c.  110,) 
Lis  right  of  priority  will  not  be  affected  by  a  charge  of  debts. 

Neither  debts  by  specialty,  in  which  the  heirs  are  bound,  nor  simple  con- 
tract debts,  even  since  the  3  &  4  Will.  4,  c.  104,  constitute  a  lien  or  charge 
upon  the  land,  either  in  the  hands  of  the  debtor  or  of  his  heir  or  devisee. 
Notwithstanding  the  existence  of  such  debts,  the  debtor  himself  may  alienate 
the  land.  By  taking  proper  proceedings,  the  creditors,  both  by  specialty  and 
simple  contract,  may  obtain  payment  out  of  the  descended  or  devised  real 
estates  in  the  hands  of  the  heir  or  devisee;  but  if  such  proceedings  are  not 
taken,  the  heir  or  devisee  may  alienate,  and  in  the  hands  of  the  alienee, 
whether  upon  a  common  purchase  or  on  a  settlement,  even  with  notice  that 
there  are  debts  unpaid,  the  land  is  not  liable,  though  the  heir  or  devisee  re- 
mains loersonally  liable,  to  the  extent  of  the  value  of  the  land  alienated  : 
Rkhardson  v.  IIoHon,  7  Beav.  112,  123;  4  My.  &  Cr.  2G8,  209;  Sjxickman 
V.  Timhrell,  8  Sim.  259,  260;  but  a  mere  deposit  of  the  deeds  of  an  estate, 
(^Carter  v.  Sanders,  2  Drew.  248,)  or  a  covenant  to  settle  it  by,  (Pimm  v. 
P^gg.  Insall,  7  Hare,  487;  1  Hall  *&  T.  487;  1  Mac.  &  Gr.  448;)  or  a 
judgment  entered  up  against  the  heir  or  devisee,  {Kindciiey  v.  Jervis, 
22  Beav.  1,)  will  not  amount  to  such  an  alienation  as  will  defeat  the  creditors 
of  the  ancestor  or  devisor.     See  3Iorlei/  v.  Morley,  5  Be  G.  Mac.  &  G.  GIO. 

[The  conjunction  of  a  power  to  dispose  of  land  absolutely  by  deed  or  will  or 
by  will  only,  with  an  estate  for  life  given  by  the  will,  which  creates  the  power, 
will  render  the  whole  equitable  assets,  if  the  power  be  executed,  and  as  such, 
liable  in  equity  for  the  debts  of  the  donee  of  the  power:  Talma(je  v.  Sill,  21 
Barbour,  34;  Jolinson  v.  Cushing,  15  New  Hampshire,  298;  although  equity 
will  not  supply  a  failure  to  execute  it :  Johnson  v.  Gushing.  In  The 
Commomoealth  v.  Duffield,  2  Jones,  Penna.  277,  however,  this  course  of  deci- 
sion was  impugned  by  Gibson,  C.  J.,  as  inconsistent  with  principle,  although 
admitted  to  be  sustained  by  authority,  and  said  to  confound  authority  with 
estate  or  property,  and  to  overlook  the  fundamental  rule  that  an  appoint- 
ment takes  effect,  as  if  it  had  been  inserted  in  the  original  deed  or  settle- 
ment, and  that  the  appointee  holds  under  the  original  donor,  and  not  under 
the  appointor.] 

As  to  the  second  Jcind  of  Equitable  Assets. — Where  the  property  is  not  reco- 
verable by  the  executors  virtute  officii,  it  will  be  equitable  assets  :  Under  the 
old  law,  the  equity  of  redemption  of  an  estate  in  fee  simple,  or  of  a  trust  estate 
in  fee  simple,  would  have  been  equitable,  and  not  legal  assets,  {Solleyr.  Goioer, 
2  Vern.  01 ;  Fiunket  v.  Penson,  2  Atk.  290 ;)  but,  even  under  the  old  law, 
if  there  had  been  a  mortgage  for  a  term  of  years,  and  the  reversion  in  fee  was 
left  to  the  mortgagor,  it  would  have  been  legal  assets,  because  a  bond  creditor 
might  have  had  judgment  agiiinst  the  heir  of  the  obligor,  and  a  cesset  cxccutio 
till  the  reversion  came  into  possession ;  but  where  it  was  a  mortgage  of  the 
whole  inheritance,  a  bond  creditor  could  have  had  no  remedy  to  make  it  assets 
at  law;  and  if  the  specialty  creditor  had  brought  an  action  against  the  heir, 
he  might  have  pleaded  riens  per  descent:  Plunkct  v.  PensuDi,  2  Atk.  308. 


SILK     V.     PRIME.  301 


The  equity  of  redemption  however  of  a  mortgage  in  fee  is  made  legal  assets  by 
3  &  4  Will.  4,  c.  104.  See  Foster  v.  Handlcy,  1  Sim.  N.  S.  200  f  15  Jur.  73. 
The  equity  of  redemption  of  a  term  of  years,  after  forfeiture  at  law,  was,  it 
seems,  formerly  considered  equitable  assets.  In  The  case  of  the  creditors 
of  Sir  Charles  Cox,  3  P.  Wms.  342,  Sir  Joseph  Jekyll,  M.  R.,  held,  that  a 
mere  right  of  redemption  of  a  term  being  barely  an  equitable  interest,  it  was 
reasonable  to  construe  it  equitable  assets,  and  consequently  distributable 
amongst  all  the  creditors  pro  rata,  without  having  respect  to  the  degree  or 
quality  of  their  debts;  all  debts  being  in  a  conscientious  regard  equal,  and 
equality  the  highest  equity;  and  see  liar  tic  ell  v.  Chitters,  Amb.  308,  decided 
upon  the  authority  of  that  case.  However,  Mr.  Cox,  in  his  note  to  The  case 
of  the  creditors  of  Sir  Charles  Cox,  3  P.  Wms.  344,  says,  that  upon  looking 
into  the  Ma.ster's  report,  it  appeared  that  the  only  two  creditors  being  in  equal 
degree,  the  Master  declined  to  distinguish  which  were  legal  and  which  were 
equitable  assets,  so  that  the  point  was  not  in  fact  determined,  and  that  Hart- 
well  V.  Chitters  rested  upon  the  authority  of  that  case.  "  On  the  other  hand," 
Mr.  Cox  observes,  "  it  has  been  decided  that  chattels,  whether  real  or  personal 
mortgaged  or  pledged  by  the  testator,  and  redeemed  by  the  executor,  shall  be 
assets  at  law  in  the  hands  of  the  executor,  for  so  much  as  they  are  worth  be- 
yond the  sum  paid  for  their  redemption,  though  recoverable  only  in  equity." 
And  *in  proof  of  this  he  cites  Hawkins  v.  Laives,  1  Leon.  155 ;  Har-      , ,  ^^-, 

K  .  r  loon 

court\.  Wrenha^n,  or  Haricoodx.  Wrayman,  Moore,  858;  1  Pioll.  Rep.    L  -■ 

66;  1  Brownl.  76;  1  Roll.  Abr.  920;  Alexander  v.  Lady  Graham,  1  Leon. 
225;  but  see  the  judgment  of  Bayley,  J.,  in  Clay  v.  Willis,  1  B.  &  C.  372, 
and  that  of  Lord  Tenterden,  C.  J.,  in  Barker  v.  3Iay,  9  B.  &  C  493,  in  which 
the  doctrine  laid  down  in  the  case  of  the  creditors  of  Sir  Charles  Cox,  and 
Harticell  v.  Chitters,  viz.  that  the  equity  of  redemption  of  a  term  of  years  is 
equitable  assets,  is  recognized  and  approved  of. 

It  has  moreover  been  decided  that  trusts  of  a  chattel,  as  a  mere  equitable 
interest  in  a  term,  not  being  affected,  as  trusts  of  inheritance,  by  29  Car.  2,  c. 
3,  s.  10,  are  equitable  assets :  Scott  v.  Scholey,  8  East,  4G6 ;  Jletcalf  v.  Scholey, 
2  New  Rep.  467. 

In  the  recent  case,  however,  of  Cook  v.  Gregson,  (3  Drew.  547,)  it  was  held 
by  Sir  R.  T.  Kiudersley,  V.  C,  that  the  equity  of  redemption  of  a  sum  of 
money  charged  on  land  is  legal  assets  in  the  hands  of  the  executor.  "  The 
general  principle,"  said  his  Honor,  "  is  that  a  court  of  law  would  treat  as  assets 
every  item  of  property  come  to  the  hands  of  the  executor  which  he  has  reco- 
vered, or  had  a  right  to  recover,  merely  virtute  officii,  i.  e.  which  he  would 
have  had  a  right  to  recover  if  the  testator  had  merely  appointed  him  executor, 
without  saying  anything  about  his  property  or  the  application  thereof.  That 
I  think  is  the  test  which,  upon  principle,  a  court  of  law  would  apply.  Assuming 
that  to  be  the  true  principle,  suppose  first,  that  the  testator  was  at  his  death 
entitled  to  a  sum  of  money  equitably  charged  on  land ;  as  the  executor  could 
recover  this  merely  virtute  officii,  as  executor,  I  apprehend  that,  when  received 
by  the  executor,  it  would  be  legal  assets  in  his  hands.     Next,  let  the  same 


302  EQUITABLE     ASSETS. 


principle  be  applied  to  an  equity  of  redemption.  Wlieu  the  time  fixed  for 
payment  of  the  mortgaf^e-money  has  passed,  ^Yhat  is  the  right  of  the  mort- 
gagor ?  It  is  suggested  that  it  is  merely  a  right  to  re-purchase,  that  certainly 
is  not  the  view  taken  of  the  law  in  modern  times;  the  unvarying  tendency  of 
modern  decisions  is  to  treat  a  mortgage  merely  as  a  security,  and  to  treat  the 
mortgagor  as  being  still  the  real  owner.  And  I  think  the  view  which  Went- 
worth  takes  in  the  passage  referred  to  by  the  learned  counsel  for  the  plaintiff, 
(p.  186,)  must  be  considered  as  much  affected  by  the  different  light  in  which 
the  position  of  the  mortgagor  was  regarded  in  former  times.  An  equity  of 
redemption  is  not  now  considered  as  a  matter  of  indulgence;  it  is  now  a  matter 
of  absolute  right.  And  is  it  not  merely  by  virtue  of  his  office  that  the  executor 
of  a  mortgagor  who  has  mortgaged  a  chattel,  comes  to  this  Court  to  redeem? 
*I  think  it  clearly  is.  If  there  were  nothing  in  the  will  but  the 
L  -^  appointment  of  executor,  would  not  the  executor  be  entitled  simply 
virtute  officii  to  ask  for  redemption  ?  Clearly  he  would.  A  mere  administrator 
might  demand  it.  If  so,  I  confess  it  appears  to  me  that  the  general  principle, 
as  I  have  stated  it,  applies  to  an  equity  of  redemption  of  a  chattel  interest, 
whether  real  or  personal ;  and  that  such  an  equity  of  redemption  would  be 
legal  assets.  Now  whether  those  cases  which  have  been  cited  with  respect  to 
the  equity  of  redemption  of  a  mortgaged  term  of  years  are  to  be  considered  an 
exception,  it  is  not  absolutely  necessary  for  me  to  determine.  If  I  were  called 
upon  to  do  so,  I  should  say  that,  in  my  opinion,  those  cases  are  not  sustain- 
able, and  ought  not  at  this  day  to  be  followed.  In  this  case,  it  is  an  equity  of 
redemption  of  an  equitable  charge  of  a  sum  of  money  on  real  estate,  which  the 
executor  has  clearly  in  my  opinion  a  right,  in  his  mere  character  of  executor, 
first  to  redeem,  and  then  to  enforce  payment  of.  It  is  said  it  is  a  sort  of 
double-distilled  equity ;  first,  there  is  a  mere  equity  on  a  charge,  and  then 
there  is  a  mortgage  of  that,  and  the  testator's  interest  consists  of  the  equity  of 
redemption  of  that  mortgaged  equity.  That  docs  not,  as  it  appears  to  me,  at 
all  prevent  the  executor  being  entitled,  virtute  officii,  to  redeem  and  recover 
the  sum  charged;  and  I  am  therefore  of  opinion  that  the  assets  here  recovered 
are  legal." 

But  a  judgment-creditor  will  be  paid  out  of  an  equity  of  redemption  before 
simple  contract  creditors,  because  he  has  a  right  to  redeem :  Sharpe  v.  The 
Earl  of  Scarhoroughj  4  Ves.  538. 

The  creditors  of  a  married  woman  dying  possessed  of  separate  property,  will 
be  paid  out  of  it  pari  passu,  because  they  can  only  affect  her  property  in  a 
court  of  equity,  and  their  debts,  having  no  existence  at  law,  are  considered 
equal  in  equity  :  see  Murray  v.  Barlee,  3  My.  &  K.  200,  and  Oicens  v. 
Dicl-cnaon,  Cr.  &  Ph.  48,  53,  where  a  married  woman  by  will  charged  her 
debts  upon  her  separate  prop(yty ;  and  see  ante,  "\'ol.  1,  p.  415. 

The  maxim,  that  equality  is  apn'ly,  applies  only  to  those  persons  whose 
equities  are  equal  as  creditors  among  themselves,  and  it  will  not  be  extended 
to  legatees  jointly  with  creditors.  Tlius,  although  land  may  be  devised  in 
trust  for  or  charged  with  the  payment  of  debts  and  legacies,  the  debts  will 


SILK     V,      PRIME.  303 


have  the  precedence  of  the  legacies,  upon  the  ground  that  a  man  ought  to  be 
just  before  he  is  generous;  "  for  a  man  may  not  give  but  what  is  his  own,  but 
what  he  hath  ultra  ses  alienum  :"     Hixon  v.   Wi/tliam,  1  Ch.  Ca.  248  ;  S.  C, 

1  Freem.  Ch.  Rep.  305;  Sir  John  Bowles^  case,  cited  by  Hutchins,  Lord 
Commissioner,  in  Greaves  v.  Powell,  2  Vern.  248  ;  Walker  v.  *  Meager,    p^-.  ^^-, 

2  P.  Wins.  551 ;  and  Petre  v.  Brtien,  there  cited;  Kidney  v.  Couss- 
maker,  12  Yes.  154  ;  overruling  some  of  the  old  decisions  and  dicta,  in  which 
it  was  considered,  that,  as  in  such  cases,  neither  the  creditors  nor  legatees 
could  make  any  claim  of  strict  right,  but  merely  from  the  bounty  of  the  tes- 
tator, they  ought,  therefore,  to  be  paid  pari  passu,  without  any  distinction. 

Order  in  ichich  Assets,  2)f(rtly  Legal  and  pardy  Equitahle,  are  adminis- 
tered.— 1st.  The  personal  estate  not  specifically  bequeathed,  (^Davies  v.  Topp, 
1  Bro.  C.  C.  526,)  unless  exempted  by  declaration  plain,  or  inference  as  plain, . 
(^Manning  v.  Spooner,  3  Yes.  117;  Milnes  v.  Slater,  8  Yes.  305;  and  see 
Aricaster  v.  Mayer,  Yol.  1,  p.  505,  and  note;)  and  this  being  legal  assets,  will 
be  applied  in  a  course  of  administration  in  payment  of  debts,  according  to 
their  legal  priorities. 

2nd.  Real  estates,  devised  or  ordered  to  be  sold  for  payment  of  debts,  not 
merely  charged  with  payment  of  debts  :  Davies  v.  Toj^j),  1  Bro.  C.  C.  527  ; 
Harmood  v.  Oglander,  8  Yes.  125 ;  Manning  v.  Sjjoo^ier,  3  Yes.  117. 

These,  however,  will  be  equitable  assets,  and  applicable  in  payment  of  debts 
by  specialty  and  simple  contract  pari  passu  ;  ^^^eicby  v.  Skinner,  1  Dev.  &  Bat. 
Eq.  488 ;  Nagle's  Ajjpeal,  1  Harris,  260,  264 ;  Hoover  v.  Iloover,  5  Barr, 
356,  ante,  251.] 

3rd.  Real  estates  descended,  but  not  charged  with  debts,  (Davies  v.  Topp, 
Harmood  v.  Oglander,  Planning  v.  Spooner,')  whether  in  the  possession  of 
the  devisor  at  the  date  of  his  will,  or  subsequently  acquired,  (^Milnes  v.  Slater, 
8  Yes.  304.)  These  are  legal  assets  liable  to  debts  by  specialty,  but  not 
before  47  Geo.  3,  c.  74,  and  3  &  4  Will.  4,  c.  104,  to  debts  by  simple  con- 
tract. If,  however,  in  the  course  of  administration,  the  specialty  creditors  had 
been  paid  out  of  the  personal  estate,  these  assets,  as  remarked  in  a  former 
note,  even  before  the  statute,  have  been  marshalled  in  favor  of  simple  contract 
creditors. 

4th.  Real  estate  devised,  charged  with  payment  of  debts,  (^Davies  v.  Topp, 
Harmood  v.  Oglander,  Manning  v.  Spooner,  Barnewell  v.  Lord  Caicdor,  3 
Madd.  453 ;)  and  these  being  equitable  assets,  all  debts  are  payable  out  of 
them  pari  passu. 

Where  real  estate  was  devised,  subject  to  debts  to  one  for  life  with  re- 
mainder to  three  persons  as  tenants  in  common,  and  one  of  the  shares  lapsed, 
it  was  held  by  Sir  John  Stuart,  Y.  C,  that  the  lapsed  share  was  applicable 
for  payment  of  debts  in  the  same  order  as  the  devised  estates,  and  not  till 
after  the  real  estates  which  had  descended;  Wood  v.  Ordish,  3  Sm.  &  Gifi". 
125. 

5th.  General  pecuniary  legacies  pro  rata.    [Ante,  251,  260.] 

6th.  Real  estate  devised,  not  charged  with  debts,  (Davies  v.  Topp,  Man- 


804  EQUITABLE     ASSETS. 


P^l^o-i    ning  v.  Sjjooner ;)  and  personal  estate  specifically  *bequcat 
contributing  rateably,  (^Long  v.  Short,  1  P.   Wms.  403 ; 


itbcd,  each 
Tombs  V. 

JRoch,  2  Colt.  490;  Weir  v.  Chamlci/,  1  Ir.  Ch.  liep.  295;  Gervis  v.  Gervis, 
14  Sim.  654,  overruling  Cornewall  v.  Cornewall,  12  Sim.  298 ;  and  see 
Young  V.  Ilassard,  1  J.  &  L.  472;  Jdchsonx.  Hamilton,  3  J.  &  L.  711 ;  and 
Batcman  v.  IlotchJcin,  10  Beav.  426 ;)  unless  one  is  made  primarily  liable, 
{Batcman  v.  Ilotchkin,  10  Beav.  426  ;)  the  former  species  of  property,  pre- 
vious to  the  statutes  rendering  real  estates  liable  to  debts  by  simple  contract, 
would  only  be  liable  to  debts  by  specialty;  but  if  the  specialty  creditors  had 
been  paid  out  of  the  personal  assets,  the  simple  contract  creditors,  by  mar- 
shalling, would  be  entitled  to  satisfaction  out  of  the  real  estates  devised  pro 
tanto.     [Ante,  251,  260.] 

7th.  Where  a  person  has  a  general  power  of  appointment  over  personal 
estate,  and  he  actually  exercises  his  power  by  deed  or  will,  the  property 
appointed  will  in  equity  form  part  of  his  assets,  so  as  to  be  subject  to  the  de- 
mands of  his  creditors  in  preference  to  the  claims  by  his  legatees  or  appointees, 
(Thomj)son  v.  Towne,  2  Vern.  319;  Lassels  \.  Lord  Cormvadis,  lb.  465; 
Free.  Ch.  232 ;  JIi7iton  v.  Toi/e,  1  Atk.  465 ;  Shirk?/  v.  Ferrars,  2  Atk.  172  ; 
2  Ves.  2,  8,  9  ;  Bainton  v.  Ward,  2  Atk.  172 ;  Townshend  v.  Windham,  2 
Ves.  1 ;  Pack  v.  Bathurst,  3  Atk.  269  ;  TronghtonY.  Troughton,  3  Atk.  656  ; 
Jenney  v.  Andrews,  6  Madd.  264  ;)  [  Tahnadge  v.  SiU,  21  Barb.  34 ;  Johnson  v. 
dishing,  15  New  Hampshire,  313 ;]  but  as  a  court  of  equity  never  aids  the 
non-execution  of  a  power,  the  power  must  be  actually  executed  in  order  that 
equity  may  thus  interpose  in  favor  of  creditors  :  Holmes  v.  Coghill,  7  Ves. 
499 ;  12  Ves.  206. 

And  since  Sir  John  Romilly's  Act,  (3  &  4  Will.  4,  c.  104,)  it  has  been 
held  that  freehold  estates  over  which  a  testator  has  a  general  power  of  appoint- 
ment, and  which  he  appoints  by  his  will,  are  assets  for  the  payment  of  his 
debts  even  by  simple  contract;  IlemingY.  Buchanan,  3  De  Gr.  Mac.  &  G. 
976.      [_Tahnadgey.  Sill,  Johnson  y.  Cushing.'] 

But  whether  it  be  real  or  personal  estate  which  has  been  appointed  so  as  to 
become  assets  for  payment  of  the  appointor's  creditors,  it  will  be  only  applica- 
ble in  aid  of  the  assets  which  are  really  his  property.  See  Bainton  v.  Ward, 
2  Atk.  172,  and  the  decree  in  that  case  set  out  in  the  note  to  IMmes  v.  Cog- 
hill,  7  Ves.  502  ;  DauLeney  v.  Cockhurn,  1  Mer.  639.  And  see  Fleming  v. 
Buchanari'Z  Do  G.  Mac.  &  (}•  976,  where  it  was  held  that  the  personal  and 
real  estates  of  the  appointor,  including  property  specifically  devised  and 
bequeathed,  were  applicable  in  payment  of  his  debts,  before  the  appointed 

estate. 

But  if  an  appointee,  under  a  general  power  of  appointment,  were  to  sell  the 
property  to  a  bona  fide  purchaser  for  valuable  consideration,  the  purchaser 
having  a  better  equity  would  be  preferred  *to  the  creditors  of  the 
^  -^  appointor,  since  they  have  no  specific  charge  upon  the  property  : 
Hart  V.  Middlehurst,  3  Atk.  377  ;  George  v.  Milhanke,  9  Ves.  190  ;  and  it 
has  been  said  by  Sir  W.  Grant,  M.  B.,  that  where  a  person  has  executed  an 


SILK     V.     PRIME. 


305 


appointment  of  property  over  wliicli  he  has  a  power  unlimited  as  to  objects, 
he  who  pays  a  consideration  to  the  voluntary  appointee  may  constructively  be 
held  to  be  in  the  same  situation  as  if  he  had  in  the  first  instance  paid  it  to 
him  by  whom  the  estate  has  been  granted  :  in  Daubeny  v.  Cockhurn,  1  Mer. 
638. 

Where  assets  are  partly  legal,  and  partly  equitable,  though  equity  cannot 
take  away  the  legal  preference  on  legal  assets,  yet  if  one  creditor  has  been 
partly  paid  out  of  such  legal  assets,  when  satisfaction  comes  to  be  made  out  of 
equitable  assets  the  Court  will  postpone  him  till  there  is  an  equality  in  satis- 
faction to  all  the  other  creditors,  out  of  the  eqviitable  assets,  proportionable  to 
so  much  as  the  legal  creditor  has  been  satisfied  out  of  the  legal  assets  :  Mor- 
rice  V.  Bank  of  England,  Ca.  t.  Talb.  220 ;  Sheppard  v.  Kent,  2  Vern.  435; 
Deg  v.  Deg,  2  P.  Wms.  416 ;  Hashwood  v.  Pope,  3  P.  Wms.  323  ;  Wride  v. 
Clark,  1  Dick,  382  ;  Baily  v.  Plougliman,  Mos.  95 ;  Soames  v.  Rohinson,  1 
My.  &  K.  500 ;  Chapman  v.  Esgar,  1  Sm.  &  Gifi".  575  ;  and  see  the  decree 
in  Plunket  v.  Penson,  2  Atk.  294.  This  doctrine  is  founded  upon  the  well- 
known  maxim,  that  he  who  seeks  equity  shall  do  equity,  the  Court  refusing  its 
aid  to  a  creditor  who  has  taken  advantage  of  his  legal  rights,  to  the  exclusion 
of  other  creditors,  who,  in  the  eyes  of  equity,  are  equally  meritorious,  until 
they  are  placed  upon  an  equal  footing  with  him. 


Equitable  assets  seem  to  be  those 
which,  from  their  own  nature,  or  the 
character  which  has  been  impressed 
upon  them,  cannot  be  reached  or  ad- 
ministered by  the  law,  and  which, 
consequently,  fall  within  the  exclu- 
sive jurisdiction  of  equity  ;  ante ; 
Cornish  v.  Wilson,  6  Gill,  299.  The 
mere  change  of  the  forum  in  which 
assets  are  distributed,  from  law  into 
equity,  will  not  vary  their  character 
nor  afiect  the  order  of  distribution. 
In  distributing  legal  assets  equity  fol- 
lows the  law,  and  respects  legal  pri- 
orities; Tenant  v.  Stanley,  1  Kich- 
ardson.  Equity,  221,  261.  But  where 
assets  are  the  growth  of  equitable 
jurisdiction,  and  the  fruit  of  equitable 
principles,  equity  will  pursue  its  great 
law  of  equality  in  proceeding  to  their 
distribution ;    Gibson   v.   Findley,    4 

VOL.  II. — 20 


Maryland,  Ch.  75;  Rohinson  x.  The 
Bank,  18  Georgia,  65 ;  except  in  so 
far  as  they  are  bound  by  prior  legal 
or  equitable  liens  or  encumbrances; 
Tenant  v.  Sfoney. 

Hence,  although  a  bond  creditor 
was  entitled  to  a  preference  in  equity 
as  well  as  at  law,  over  a  debtor  by 
simple  contract,  in  the  distribution  of 
the  ordinary  assets  of  an  estate,  whe- 
ther real  or  personal,  yet  when  his 
right  of  recourse  failed  at  law,  and  he 
sought  to  reach  property  of  the  debtor, 
which  he  could  not  have  attained, 
through  the  use  of  legal  remedies,  he 
was  obliged  to  submit  to  an  equality 
of  distribution  with  simple  contract 
creditors.  And,  when  equitable  as- 
sets, as  for  instance,  an  equity  of  re- 
demption in  lands  or  chattels,  were 
in  question,  an  executor  could  not  re- 


306 


EQUITABLE     ASSETS. 


tain  for  his  owa  debt,  nor  could  speci- 
alty creditors  claim  a  preference  over 
debts  due  by  simple  contract,  but  the 
whole  was  distributed  rateably  among 
all  the  claimants  ;  Jones  v.  Lackland, 

2  Grattan,  81.  In  like  manner,  where 
land  was  devised,  although  for  the 
payment  of  debts,  there  was  no  re- 
medy at  common  law  for  the  specialty 
creditors  against  the  devisee,  and 
their  sole  redress  lay  in  equity,  which 
only  afforded  it  on  the  terms  of  dis- 
tributing the  fund  equally  among  all 
classes  of  debts ;  Ross  v.  Barclay,  G 
Harris,  179.      For  although  the  stat. 

3  &  4  Will.  &  Mary,  c.  14,  rendered 
lands  devised  liable  for  the  specialty 
debts  of  the  devisor,  yet  as  it  except- 
ed devises  for  the  payment  of  debts, 
these  were  held  to  remain  equitable 
assets  as  they  had  been  before  the 
statute  ;  Benson  v.  Le  Roy,  4  Johns. 
Ch.  651.  And  as  equity  assumes  the 
sole  charge  and  management  of  equit- 
able assets,  the  appointment  of  a 
debtor  to  the  office  of  executor,  will 
not  extinguish  a  charge  or  demand 
which  is  purely  equitable  in  its  cha- 
racter, nor  render  him  liable  under  a 
plea  of  plene  administravit  in  a  court 
of  law,  as  he  would  necessarily  be  if  the 
assets  were  legal ;  Wankford  v.  WanJc- 
ford,  1  Salkeld,  299,  but  the  whole 
will  retain  its  original  character,  and 
be  solely  cognizable  and  distributable 
in  equity,  as  part  of  the  equitable  as- 
sets of  the  testator;  Lowe  v.  Peskctt, 
16  C.  B.  500. 

The  death  of  one  of  the  members  of 
a  firm,  or  the  levy  of  an  execution  by 
a  separate  creditor  on  the  property  of 
the  partnership,  may  furnish  an  occa- 
sion for  the  exercise  of  the  same  prin- 
ciple, because  the  surviving  partners 
and   those    claiming  under   them    as 


creditors,  have    no  means  of  setting 
aside  the  lien  acquired  by  the  levy, 
or   reaching   the    separate    assets    in 
the    hands   of   the    administrator  at 
law,  and  the  only  remedy  lies  in  an 
application  to  equity,  which  will  insist 
as  in  other  cases  upon  equality  as  the 
price  of  its  assistance ;   Waslihurn  v. 
The  Banh  of  Bellows  Falls,  19  Ver- 
mont, 278  ;   Wilder  v.  Keeler,  3  Paige, 
107.     And  on  the  other  hand,  even 
if    the    separate   assets  of  a  partner 
should,  under  ordinary  circumstances, 
be  applied  primarily  to  the  payment  of 
his  separate  debts,  to  the  exclusion 
of  partnership   creditors,   a  different 
course  will  be  pursued  when  land  is 
charged  with  debts  by  will,  and  the 
partnership  creditors  will  receive  the 
benefit  of  the  rule,  under  which  equity 
distributes  equitable  assets  equally; 
Morris  v.   Morris,    4    Grattan,  293. 
The  general  principle,  that  equity 
regards  all  debts  as  of  equal  equitable 
and   moral   obligation,   and  aims   at 
equality  in  their  payment,  is  as  much 
a  principle  of  our  jurisprudence,  as 
that  of  England.     But  its  importance 
as   an   equitable   principle,  has  been 
much  diminished  by  the  fact  of  its 
adoption  and  incorporation  into  the 
statute  law  of  many  of  the  states  of 
this   country.      And   even   in   those 
states,  or   as    to    those    obligations, 
where  the  law  does  not  recognize  it, 
the  sphere  of  its  practical  operation, 
has  been  circumscribed  by  the  exten- 
sion of  legal  remedies  to  all  the  as- 
sets of  the  debtor,  which  under  the 
principles   above   stated,    necessarily 
excludes    them    from    the    class    of 
equitable  assets.     Thus,  in  Pennsyl- 
vania, the  doctrine  of  equitable  assets 
has  been  deprived  of  its  practical  im- 
portance, in  the  administration  of  the 


SILK     V.      PRI-ME. 


307 


estates  of  debtors  after  their  deaths, 
by  the  passaoje  of  laws,  which,  ou  the 
one  hand,  render  all  the  property 
of  the  debtor,  of  whatever  nature, 
equally  liable  for  his  debts,  and  on 
the  other,  entitle  all  creditors  to  an 
equality  of  payment,  except  in  the 
case  of  debts  due  for  menial  services, 
rents,  and  the  expenses  of  illness  and 
death,  which  are  entitled  to  priority 
by  an  express  statutory  enactment, 
equally  binding  in  law  and  in  equity  ; 
Sperri/'s  Estate,  1  Ashmead,  347 ; 
Nagle's  Appeal,  1  Harris,  260,  264. 
But  it  should  not  be  forgotten,  that 
this  adoption  of  equitable  principles 
by  the  statute  law,  does  not  weaken 
their  force  as  principles,  nor  render 
them  inapplicable  in  cases  admitting 
of  their  application ;  Torrs  Estate,  2 
Rawle,  250. 

The  doctrine  of  equitable  assets 
was  introduced  at  an  early  period  into 
the  equitable  jurisprudence  of  New 
Tork,  and  was  finally  in  a  great  mea- 
sure incorporated  with  the  statute 
law  of  that  state.  One  of  the  earliest 
cases  was  that  of  Benton  v.  Le  Roy, 
4  Johnson,  Ch.  651.  The  testator 
there  devised  all  his  estate,  real  and 
personal,  to  four  trustees,  three  of 
whom  were  his  executors,  in  trust  to 
pay  his  debts,  and  then  distribute  the 
residue.  After  his  death,  judgments 
were  obtained  against  his  estate,  on 
various  demands,  which  had  been 
assigned  to  his  widow.  A  creditor's 
bill,  having  been  filed,  subsequently, 
against  the  trustees,  to  enforce  the 
trust  and  enjoin  proceedings  on  the 
judgments,  it  was  contended  that 
they  were  entitled  to  priority,  not- 
withstanding the  devise,  under  the 
provisions  of  the  statute  law  of  New 
York,  which  declared  all   devises  of 


land  void,  as  against  creditors,  with- 
out any  exception,  in  favor  of  devises 
for  the  payment  of  debts.  The  court 
held,  that  this  exception  was  implied, 
and  decided  that  the  devise  rendered 
the  whole  estate  equitable  assets,  and 
placed  all  the  creditors  of  the  testator 
on  an  equality  of  footing,  which  could 
not  be  disturbed  by  judgments  obtain- 
ed after  his  death. 

As  the  opinion  delivered  by  Chan- 
cellor Kent  on  this  occasion,  illus- 
trates the  whole  doctrine  under  con- 
sideration, it  is  given  at  length. 

''  The  testator  in  this  case  devised 
all  his  estate,  real  and  personal,  to 
four  trustees,  (of  whom  three  were 
made  executors,)  in  fee,  and  in  trust, 
to  pay  his  debts,  and  then  to  distri- 
bute the  residue.  Such  a  devise  in 
trust  places  the  assets  under  the  juris- 
diction of  this  court.  A  court  of  law 
does  not  take  cognizance  of  a  trust, 
but  the  notice  of  it  belongs  peculiarly 
and  exclusively,  to  this  court. 

"  Before  the  statute  of  3  W.  &  M., 
if  the  testator  devised  his  lands  for 
the  payment  of  his  debts,  all  the  cre- 
ditors were  to  be  paid  j^ari  passu,  or 
in  rateable  portions ;  for  it  was  to  be 
presumed  that  the  testator  meant  to 
do  equal  justice  to  all.  Thus,  in  a 
case  before  Lord  Nottingham,  in  1681, 
(^Anon.,  2  Ch.  Ca.  54,)  the  testator 
devised  his  lands  to  trustees  to  pay 
debts,  and  the  trustees,  being  them- 
selves creditors,  paid  themselves  in 
full,  and  left  other  creditors  unsatis- 
fied, who  then  filed  their  bill  for  rate- 
able payment.  The  Chancellor  held, 
that  under  that  devise,  all  creditors 
were  to  be  paid  equally,  and  that  the 
trustees  could  not  give  themselves  a 
preference. 

<'  The  statute  of  W.  &  M.  did  not 


308 


EQUITABLE     ASSETS. 


interfere  with  this  doctrine  of  equit- 
able assets,  but  rather  gave  it,  as  it 
has  been  said,  a  parliamentary  sanc- 
tion. That  statute  (3  W.  &  M.  c. 
14,)  was  made  for  a  relief  of  creditors 
against  fraudulent  devises;  and  so 
the  preamble  to  it,  as  well  as  its  title, 
expressly  declares.  It  does  not  apply 
to  the  case  of  a  devise  to  trustees  for 
the  payment  of  debts  of  such  devise 
as  in  furtherance  for  justice,  and  of 
the  avowed  policy  and  purpose  of  the 
statute.  To  mark  that  policy  the 
more  distinctly,  the  4th  section  of  the 
statute  expressly  excepted  from  its 
operation  devises  of  lands  for  the  pay- 
ment of  debts  or  children's  portions. 
The  omission  of  this  proviso  in  our 
statute  cannot  make  the  least  altera- 
tion in  its  construction.  It  must  have 
been  omitted,  because  it  was  unneces- 
sary, and  was  doubtless  inserted  in 
the  English  statute  for  greater  cau- 
tion. It  is  impossible  to  suppose  that 
an  honest  devise  for  payment  of  debts 
could  be  affected  by  a  statute  made  on 
purpose  to  protect  creditors  against 
fraudulent  devises.  The  devisees  in- 
tended by  the  statute  were  those  who 
took  a  beneficial  interest  under  the 
will,  to  the  injury  of  creditors.  The 
statute  does  not  apply  to  cases  of 
trusts  created  by  will  to  pay  debts. 
This  we  cannot,  for  a  moment,  sup- 
pose. The  general  provisions  in  the 
English,  and  in  our  statute,  (which 
are  the  same,)  apply  only  to  suits 
at  law  against  heirs  and  devisees 
claiming  the  entire  interest  for  them- 
selves, and  against  whom  judgment 
and  execution  may  be  awarded,  for 
the  lands  which  have  come  to  their 
hands;  but  a  judgment  and  execution 
at  law  against  a  naked  trustee  holding 
lands  in  trust  for  others,  could  not 


affect   the    rights    of  the  cestui   que 
trust. 

''It  is  observed  in  Fonblanque,  (b. 
1,  c.  4,  sec.  14,  note,)  in  a  passage 
referred  to  by  the  counsel,  that  bond 
creditors  are  liable  to  be  'prejudiced' 
by  the  power  to  devise  for  the  pay- 
ment of  debts  reserved  by  the  statute 
of  3  W.  &  M.,  because  that  under 
such  a  devise,  simple  contract  credi- 
tors are  entitled  to  be  ]^aid  pari  jmssu, 
and  bond  creditors  will  thus  lose  their 
legal  priority.  But  that  is  a  preju- 
dice, if  it  can  be  so  called,  that  the 
statute  never  intended  to  remove,  be- 
cause, as  I  observed  before,  the  whole 
object  of  it  was  to  defeat  fraudulent 
devises;  and  the  payment  of  debts  by 
a  just  and  equal  distribution  of  the 
debtor's  fund,  is  not  a  hardship,  and 
much  less  a  fraudulent  provision  to- 
wards any  person.  It  is  an  act  of  such 
justice  and  pure  equity,  that  the  le- 
gislature has  always  been  solicitous  to 
encourage  it.  Thus  the  statute  pro- 
vides, (1  N.  R.  L.  452,)  that  when 
real  estate  is  sold  by  order  of  the 
Court  of  Probates,  or  of  a  surrogate, 
for  the  payment  of  debts,  the  proceeds 
are  to  be  distributed  among  the  cre- 
ditors, in  proportion  to  their  debts, 
without  giving  preference  to  special- 
ties. The  assignees  of  insolvent  debtors 
are  also  directed,  by  another  statute, 
(1  N.  R.  L.  469,)  to  make  distribu- 
tion equally  among  creditors,  without 
giving  preference  to  specialties.  The 
same  rule  is  also  directed,  by  another 
statute,  to  be  observed,  (1  N.  R.  L. 
IGl,)  by  trustees  of  absent  or  abscond- 
ing debtors.  And  we  may  safely  con- 
clude, that  though  the  fourth  section 
or  proviso  in  the  English  statute  of 
AV.  &  M.  was  omitted  in  our  statute, 
the  omission  could  not  have  been  in- 


SILK     V.     PRIME. 


309 


tended  to  perpetuate  the  common  law 
doctrine  of  preferences  between  credi- 
tors, in  case  such  a  trust  should  be 
created  by  will.  Such  a  devise  in 
trust  must  be  a  valid  devise,  and  sub- 
ject to  equity  distribution.  That  will 
not  be  disputed.  It  must  follow,  then, 
of  course,  without  some  express  sta- 
tute provision  to  the  contrary,  that 
the  fund  is  to  be  regarded  as  equit- 
able assets, 

"  In  Freemoult  v.  Dedire,  1  P. 
Wms.  429,)  it  was  admitted,  that  if 
lands  be  devised  for  the  payment  of 
debts,  they  were  to  be  considered  as 
equitable  assets,  and  bonds  and  sim- 
ple contract  debts  were  to  be  paid 
equally.  In  Deg  v.  De(/,  (2  P.  Wms. 
412,)  a  distinction  seemed  to  be  made 
between  a  devise  to  executors,  and  a 
devise  to  strangers  to  pay  debts ;  but 
in  that  case,  it  was  admitted,  that  if 
the  devise  was  to  executors,  and  to  a 
third  person,  (as  was  the  case  in  the 
present  instance,)  the  same  conclu- 
sion followed.  But  this  distinction 
has  been  since  exploded,  and  the  law 
of  the  court  on  the  subject  was  fully 
discussed  and  settled  by  Lord  Cam- 
den, in  Silh  V.  Prime.  (1  Bro.  138, 
note ;  Dickens,  384.)  The  testator, 
in  that  case,  charged  all  his  real  estate 
with  the  payment  of  his  debts,  and 
directed  his  executors,  and  their  heirs, 
to  sell  it  if  wanted  for  that  purpose. 
The  master  of  the  rolls  decreed  that 
the  assets  arising  from  the  sale  were 
to  be  considered  equitable  assets,  on 
the  ground,  that,  the  devise  was  to 
the  executors  and  their  heirs,  by 
which  means  the  descent  to  the  heir 
was  broken.  This  decree  was  affirmed 
on  appeal,  in  17G8,  by  Lord  Camden, 
and  he  observed,  that  the  assets  did 
not  come  to  the  executors  in  their 


character  as  executors,  and  the  rule 
was  settled,  that  the  assets  were  not 
legal,  unless  the  executors  took  them 
qua  executors.  A  devise  to  execu- 
tors, and  their  heirs,  made  them  trus- 
tees;  and  though  the  real  and  personal 
estate  were  made  one  fund  by  the  will, 
yet  Lord  Camden  did  not  regard  that 
objection,  but  said  that  chancery  mar- 
shalled the  assets.  The  charge  in 
that  case,  was  considered  as  amount- 
ing to  a  trust,  and  being  a  trust,  equity 
directed  the  execution  of  it  upon  equit- 
able principles. 

"  In  Newton  v.  Bennet,  (1  Bro. 
135,)  Lord  Thurlow  referred  to  the 
former  case,  and  said,  that  an  estate 
devised  to  an  executor  to  sell,  was 
equitable  assets ;  and  from  some  cor- 
rect notes  of  this  case,  (7  Vesey,  321, 
322;  8  Id.  30,)  it  appears,  that  he 
did  not  consider  it  to  be  requisite  that 
the  descent  should  even  be  broken  by 
the  devise,  to  render  the  assets  equit- 
able. It  has  since  been  repeatedly 
held,  (Bailey  v.  Ekins,  7  Vesey,  319  ; 
Shepherd  v.  Lutwidge,  8  Id.  26,) 
that  a  mere  charge  of  the  debts  upon 
the  real  estate  by  will,  makes  it  equit- 
able assets,  even  though  the  descent 
be  not  broken.  It  is  sufficient  that 
the  estate  be  devised  upon  trust  to 
pay  debts;  and  a  charge  of  the  debts 
upon  the  real  estate,  is,  in  substance 
and  effect,  a  devise  pro  tanto.  This 
was  the  doctrine  of  Lord  Eldon  in 
those  cases ;  and  he  made  this  clear 
and  pertinent  observation,  that  a 
provision  by  will,  effectual  in  law 
or  equity  for  payment  of  creditors, 
was  not  a  fraudulent  devise  within 
the  statute.  And  I  may  add,  that 
such  a  devise  is  equally  valid  and 
innocent,  and  commendable  with  us, 
as  it  would  be  under  the  protection 


310 


EQUITABLE     ASSETS. 


of  the  proviso  in  the  English  sta- 
tute. 

"  The  case  now  before  me  steers 
clear  of  every  difficulty.  It  comes  with- 
in all  the  cases,  ancient  and  modern. 
Here  the  descent  is  broken,  and  here 
is  a  devise  in  fee,  and  to  a  stranger, 
as  well  as  to  the  executors. 

"Seeing,  then,  that  here  has  been 
a  trust  created  by  will,  for  the  pay- 
ment of  debts,  this  court  is  bound  to 
take  care  that  the  trust  is  executed ; 
and  to  interpose,  if  necessary,  against 
a  proceeding  at  law  intended  to  defeat 
it.  Lord  Eldon  admitted  this  conse- 
quence in  Shepherd  v.  Luticidge.  The 
widow  of  the  testator  has  been  pur- 
chasing in  debts  due  from  the  estate, 
and  suing  them  at  law,  with  the 
avowed  purpose  of  gaining,  by  her 
diligence,  a  legal  preference  over  other 
creditors.  This  has  been  done  with 
knowledge  of  the  provisions  in  the 
will,  in  which  she  had  a  personal  in- 
terest, and  with  full  notice  of  the 
trust,  ller  acts  have  tended  to  defeat 
the  trust,  and  to  prevent  this  court 
from  causing  it  to  be  executed  by  a 
fair  and  equal  distribution  of  the  fund 
rateably  among  the  creditors.  In 
such  a  case  a  race  of  legal  diligence 
cannot  be  permitted,  nor  can  such  a 
creditor,  and  more  especially  a  volun- 
tary purchaser  of  debts,  who  was  a 
party  under  the  will,  and  had  due  no- 
tice of  its  provision,  be  suffered  to 
change  the  character  of  the  assets,  and 
turn  them  from  equitable  into  legal. 
This  would  be  to  wrest  the  trust  from 
the  jurisdiction  of  this  court,  and  de- 
stroy the  rights  of  the  ccshii  (jiie  trusts, 
who  are  the  creditors  at  large." 

The  principles  laid  down  in  this 
decision,  are  beyond  question,  part 
of  the  general  jurisprudence  of  this 


country,  although  their  application 
has  been  in  a  great  measure  super- 
ceded by  express  statutory  enact- 
ments. When  no  such  enactments 
intervene,  a  charge  of  debts  by  will 
upon  lands,  or  a  devise  in  trust  for 
the  payment  of  debts,  converts  the 
whole  fund  into  equitable  assets,  and 
brings  it  within  the  equitable  princi- 
ple of  equal  distribution;  Henderson 
V.  Barton,  3  Iredell,  Ch.  257 ;  Morris 
V.  Morris,  4  Grattan,  396 ;  J/'  Cand- 
lish  V.  Keene,  13  Id.  615 ;  Helm  v. 
Darhy's  Adm'r,  3  Dana,  186 ;  Clou- 
das' s  Executrix  v.  Adams,  4  Dana, 
603 ;  Speed's  Ex' or  v.  Nelson's  Ex' or, 
8  B.  Monroe,  499  ;  Backhouse  v.  Pat- 
ton,  5  Peters,  160.  How  far  the 
course  of  equity  under  such  circuiu- 
stances,  is  dictated  by  its  favorite 
principles  of  equality,  is  evident  from 
the  case  of  Bull's  Ex'ors  v.  Bull's 
Creditor's,  8  B.  Monroe,  352,  where 
it  was  decided,  that  although  the  as- 
sistance of  equity  will  be  given,  to  in- 
troduce equality  into  the  distribution 
of  an  estate  in  derogation  of  the  com- 
mon law,  it  will  not  be  granted  for 
the  purpose  of  producing  inequality, 
where  the  law  commands  a  j^ro  rata 
distribution,  and  that  a  devise  direct- 
ing a  preference  to  certain  creditors 
over  the  rest,  is  consequentlj^  inopera- 
tive, both  at  law  and  in  equity. 

It  has  already  been  stated,  that  as- 
sets are  equitable,  when  they  have 
their  origin  in  equity,  and  but  for  its 
intervention,  would  not  have  the  char- 
acter of  assets  at  all.  It  was,  how- 
ever, held,  by  Chancellor  Kent,  in 
Thompson  v.  Brown,  4  Johnson,  Ch. 
619,  that  a  decree  in  a  bill  filed  by  a 
creditor  for  himself  or  for  creditors 
generally,  against  an  executor  or  ad- 
niini.strator  for  an    account,   and  an 


SILK     V.     PRIME. 


311 


administration  of  the  assets  of  a  de- 
ceased testator,  would  operate  as  a 
judgment  in  favor  of  all  the  creditors 
of  the  estate,  and  consequently  put 
them  all  upon  the  same  footing  with- 
out regard  to  the  dignity  or  nature  of 
their  claims,  except  in  so  far  as  they 
had  obtained  prior  specific  liens  by 
judgment,  or  in  some  other  manner. 
And  it  was  said  to  follow,  that  where 
such  a  decree  has  been  rendered,  bond 
creditors  must  come  in  lyarijxtssu  with. 
those  claiming  by  simple  contract. 
A  similar,  principle  had  been  applied 
in  the  prior  care  of  3Ioses  v.  Munja- 
troyd,  1  Johnson,  Ch.  119,  where  it 
was  decided,  that  even  if  the  statutes 
of  New  York,  which  rendered  equi- 
ties of  redemption  liable  to  execu- 
tion, made  them  legal  assets  under 
ordinary  circumstances,  they  would 
not  retain  that  character,  when  sold 
under  a  decree  in  chancery,  and 
brought  there  for  distribution.  It 
was,  however,  admitted,  in  Broion  v. 
TJionipson,  perhaps  somewhat  incon- 
sistently, that  judgment-creditors  did 
not  lose  their  priority  even  as  against 
the  proceeds  of  personalty,  because 
the  fund  was  brought  into  equity  for 
distribution  under  a  creditor's  bill, 
and  the  same  point  was  again  deter- 
mined in  the  subsequent  case  of  Cod- 
wise  V.  Gelston,  10  Johnson,  507. 

The  doctrine  held  in  Broicn  v. 
Thompson,  seems  to  go  beyond  the 
course  of  English  equity,  so  far  as  it 
holds,  that  a  decree  for  the  distribu- 
tion of  assets  in  equity,  can  defeat 
existing  rights  of  priority  at  law, 
whether  arising  by  bond  or  judgment. 
It  was  pointedly  questioned  by  Chan- 
cellor Walworth,  it  ^yilder  v.  Keeler, 
3  Paige,  167,  on  general  principles, 
who  said  that  before  Broicn  v.  Thomp- 


son, he  had  always  supposed  the  rule 
to  be  otherwise,  although  the  adop- 
tion of  that  decision  by  the  Revised 
Statutes,  had  precluded  all  further  ex- 
amination of  the  question.  The  true 
rule  of  equity  on  the  subject,  seems 
to  have  been  laid  down  by  the  same 
judge,  in  Purdy  v.  Doyle,  1  Paige, 
558,  where  the  question  arose  on  the 
distribution  of  the  proceeds  of  real 
estate,  sold  under  a  decree  in  a  credi- 
tor's bill,  and  it  was  held,  that  as  such 
a  decree  could  not  destroy  existing 
legal  priorities,  nor  render  legal  assets 
equitable,  the  judgment-creditors  were 
entitled  to  a  preference  so  far  as 
the  legal  title  to  the  estate  sold  was  in 
the  debtor,  but  that  the  proceeds  of 
the  residue  of  the  land  in  which  he 
had  a  mere  equity,  were  equitable  as- 
sets, which  would  be  applied  exclu- 
sively in  payment  of  the  other  credi- 
tors, until  they  had  received  an  equal 
proportional  share  with  those  claiming 
under  the  judgments.  ''The  first  ques- 
tion," said  the  chancellor,  *'  presented 
in  this  case,  is  whether  the  fund  in 
court  is  legal  or  equitable  assets.  If 
it  is  such  property  as  the  judgment 
creditors  could  obtain  a  specific  or 
general  lien  on  at  law,  they  are  enti- 
tled to  the  fruits  of  their  superior 
vigilance,  so  far  as  they  have  succeed- 
ed in  getting  such  lien.  But  if  the 
property  was  in  such  a  situation  that 
it  could  not  be  reached  by  a  judgment 
at  law,  and  the  fund  is  raised  by  a 
decree  of  this  court,  and  the  creditors 
are  obliged  to  come  here  to  avail  them- 
selves of  it,  they  will  be  paid  upon 
the  footing  of  equity  only ;  (  Codioise 
V.  Gelston,  10  Johns.  Rep.  507.)  It 
clearly  appears  by  the  affidavits  before 
me  in  this  case,  that  as  to  one  half  of 
the  property  out  of  which  the  fund  in 


312 


EQUITABLE     ASSETS. 


court  was  raised,  the  legal  title  never 
was  in  the  ancestor,  and  of  course  it 
did  not  at  law  descend  to  the  heirs. 
The  first  section  of  the  act  for  the  re- 
lief of  creditors  against  heirs  and  de- 
visees, gives  an  action  against  the 
heirs  of  a  debtor,  who  dies  seised  of 
land,  &c.  At  law,  a  contract  to  pur- 
chase, and  payment  of  the  purchase, 
does  not  give  the  purchaser  a  legal 
seisin  of  the  land.  In  this  court  it  is 
otherwise;  and  on  the  equity  of  that 
statute,  this  court  would  give  to  the 
creditors  satisfaction  out  of  the  equit- 
able interest  in  the  land  descended  to 
the  heirs.  But  when  the  creditors 
come  here  for  the  purpose  of  reaching 
the  equitable  right  of  the  heirs,  they 
must  submit  to  the  equitable  rule  of 
this  court.  In  Morrice  v.  The  Banh 
of  England,  (Cases  temp.  Talb.  218,) 
that  rule  is  stated  thus  :  '  The  rule  of 
this  court,  with  regard  to  equitable 
assets,  is  to  put  all  the  creditors  on  an 
equal  footing  :  so  where  the  assets  are 
partly  legal  and  partly  equitable  ;  and 
though  equity  cannot  take  away  the 
legal  preference  on  legal  assets,  yet  if 
one  creditor  has  been  partly  paid  out 
of  such  legal  assets,  when  satisfaction 
comes  to  be  made  out  of  the  equitable 
assets,  the  court  will  defer  him  until 
there  is  an  equality  in  satisfaction  to 
all  the  other  creditors,  out  of  the 
equitable  assets,  proportionable  to  so 
much  as  the  legal  creditor  has  been 
satisfied  out  of  the  legal  assets.' "  The 
same  principle  was  applied  in  the  sub- 
sequent case  of  Wilder  v.  Keeler,  3 
Paige,  167,  and  said  to  be  the  uniform 
rule  when  equitable  assets  arc  in  ques- 
tion. 

Whatever  doubt  may  exist  as  to 
how  far  equity  will  regard  general 
legal  priorities,  in  tlie  distribution  of 


assets,  there  is  none  that  full  effect 
must  be  given  to  specific  liens,  nor 
that  where  a  fund  is  in  the  hands  of 
a  court  of  equity  for  distribution,  it 
will  neither  refuse  to  allow  creditors 
claiming  by  pledge  or  mortgage,  a 
priority  to  the  full  extent  of  their 
liens  on  the  fund  itself,  nor  exclude 
them  from  the  fund,  unless  they  will 
consent  to  put  other  property,  on  which 
they  have  an  exclusive  or  preferred 
claim,  within  reach  of  the  court  for 
equal  distribution  ;  Riitledrje  v.  Hazle- 
hurst,  1  M'Cord,Ch.  46G;  lI'BermuU 
V.  Strong,  4  Johnson,  Ch.  687 ; 
Averill  V.  LoucJcs,  6  Barbour,  470 ; 
M^  Candlish  v.  Keene,  13  Grattan,  615, 
634;  SJmnk's  Apj^eal,  2  Barr,  304. 
The  rule  is  the  same  whether  the  prior 
lien  be  legal  or  equitable,  and  whether 
it  arises  from  a  preference  shown 
by  the  debtor,  or  from  the  superior  dili- 
gence of  the  creditor,  and  hence  the 
levy  of  an  execution  on  property  lying 
beyond  the  reach  of  legal  process,  fol- 
lowed by  a  bill  praying  for  relief  in 
equity,  will  give  the  complainant  a 
priority  over  other  parties  who  have 
been  more  remiss  in  their  efforts  to 
obtain  satisfaction ;  M^Dermott  v. 
Stoney,  4  Johnson,  Ch.  687;  Tenant 
V.  Stoney,  1  Richardson,  Eq.  221, 
261 ;  Freemoult  v.  Dedire,  1  Pecre 
Williams,  429;  while  a  covenant  to 
settle  specific  lands,  will  entitle  the 
covenantee  to  have  the  lands  appro- 
priated in  satisfaction  of  the  covenant, 
to  the  exclusion  of  other  claimants, 
notwithstanding  a  subsequent  charge 
of  debts  by  will,  by  which  they  are 
converted  into  equitable  assets ;  Free- 
moult  v.  Dedire.  Assets  in  bank- 
ruptcy, are  in  general  distributed  as 
equitable  assets,  but  their  distribution 
deviates  so  far  from  the  general  rule. 


SILK     V.     PRIME. 


313 


that  creditors  who  hold  specific  or  col- 
hiteral  liens  or  securities,  will  be 
obliged  to  deduct  the  value  of  their 
securities  from  the  amount  of  their 
debts,  and  prove  only  for  the  residue. 
This  rule  has  generally  been  held  to 
be  limited  to  questions  arising  under 
the  bankrupt  laws.  But  in  Green- 
wood V.  Tai/lur,  ante,  209,  Sir  John 
Leach  took  the  position,  that  the  rule 
is  one  of  equity,  and  would  be  enforced 
whenever  the  assets  of  an  insolvent 
estate  were  distributable  in  equity. 
And  he  consequently  declared,  that 
in  the  administration  of  an  estate  un- 
der a  creditor's  bill,  a  mortgage  cre- 
ditor was  only  entitled  to  a  dividend 
on  so  much  of  the  debt,  as  might  re- 
main unpaid  after  the  sale  of  the  mort- 
gage. The  same  rule  is  followed  by 
the  courts  of  Massachusetts,  in  distri- 
buting the  assets  of  insolvents,  after 
their  decease,  and  said  to  be  well 
founded,  both  in  authority  and  princi- 
ple ;  Amory  v.  Francis,  16  Mass.  308  ; 
Farnum  v.  Boutelle,  13  Metcalf, 
139.  In  Mason  v.  Bogg,  2  Mylne  & 
Craig,  448,  however.  Lord  Cottenham 
doubted,  if  he  did  not  substantially 
overrule  Sir  John  Leach's  decision, 
which,  as  it  appeared  on  inquiry, 
had  not  been  followed  in  practice 
in  the  oflSces  of  the  Masters  in 
Chancery.  In  West  v.  The  Bank  of 
Rutland,  19  Vermont,  403,  the  court 
refused  to  pursue  the  novel  and  inde- 
fensible course  taken  in  Greenwood  v. 
Taylor,  or  to  hold  that  a  dividend  on 
the  estate  of  an  insolvent  debtor,  was 
to  be  only  on  the  amount  due  on  the 
debt,  after  deducting  the  value  of  the 
collateral  securities  held  by  the  credi- 
tor; and  the  same  view  was  taken  by 
the  Supreme  Court  of  Pennsylvania, 
in  Shunlcs  Appeal,  2  Barr,  304,  ante. 


One  of  the  most  important  applica- 
tions of  the  doctrine  of  equitable  as- 
sets, arises  in  apportioning  and  distri- 
buting the  partnership  and  separate 
estates  of  partners,  among  the  joint 
and  several  creditors.  This  question 
may  arise  as  against  the  estate  of  a 
deceased  partner,  while  the  other  is 
living,  or  in  cases  of  bankruptcy  or  in- 
solvency, while  both  are  alive.  Every 
partner  has  a  right  to  require  that  the 
partnership  assets  shall  be  applied  to 
the  payment  of  debts  of  the  partner- 
ship, and  to  the  liquidation  of  any 
amount  which  may  be  due  to  him  on 
the  settlement  of  the  accounts  of  the 
firm,  in  preference  to  the  separate  or  in- 
dividual debts  of  his  co-partners ;  and 
no  partner  can  appropriate  or  withdraw 
any  portion  of  the  joint  property,  for 
his  own  purposes,  or  for  the  payment 
of  his  private  debts,  without  the  as- 
sent of  his  copartners,  until  their 
claims  and  those  of  the  partnership 
creditors  are  fully  satisfied.  It  is 
therefore  plain,  that  the  joint  credi- 
tors who  unite  in  themselves  the  equi- 
ties of  all  the  partners,  have  a  better 
right  than  separate  creditors,  whose 
title  can  rise  no  higher  than  that  of 
the  partner  who  is  their  debtor.  And 
it  consequently  follows,  that  when 
partnership  assets  are  in  the  hands  of 
equity  or  of  a  court  of  law,  acting  ou 
equitable  principles,  for  distribution, 
the  separate  creditors  will  have  to  give 
way  to  the  joint,  and  can  take  nothing 
until  the  latter  are  fully  satisfied ;  1 
American  Leading  Cases,  479,  4th  cd. 

Such  are  the  reasons  for  the  pre- 
ference given  to  the  joint  creditors  in 
the  settlement  of  the  accounts  of  the 
firm ;  but  the  distribution  of  the  as- 
sets of  the  individual  partners,  rests 
on  other  grounds,  and  is  governed  by 


314 


EQUITABLE     ASSETS. 


considerations  of  an  entirely  different 
nature,  whicli  cannot  be  understood 
•without  an   exact  discrimination  be- 
tween those  cases  in  which  the  ques- 
tion grows  out  of  the  death  of  one 
partner  during   the   life   of   another, 
and  those  where  it  arises  while  the 
partners  are  alive,  or  in  the  adminis- 
tration of  the  estate  of  a  surviving 
partner     For  when  a  debt  is  due  by 
two  or  more  persons,  jointly  and  not 
severally,  the  death  of  either  of  the 
debtors,  is  an  extinction  of  his  legal 
liability  for  the  debt,  and  the  creditor 
can  only  proceed  against  the  survivor 
at  law,  and  must  seek  the  aid  of  equity 
to  reach  the  estate  of  the  deceased. 
Hence,   whenever   one   partner   dies 
in  the  lifetime  of  another,  the  law 
casts  all  the  obligations   of  the  firm 
on  the  surviving  partner,  and  the  only 
recourse  of  the  partnership  creditors 
against  the  separate  estate  of  the  de- 
ceased partner,  being  in  equity,  this 
estate  will  stand,  so  far  as  they  are  in 
question,  on  the  footing  of  equitable 
assets,  and  be  subject  to  the  two  prin- 
ciples which  govern  the  distribution 
of  such  assets,  first,  that  legal  priori- 
ties must  be  respected,  and  next,  that 
the  division  among  equitable  claim- 
ants must  be  equal.     When,  there- 
fore, the  estate  of  a  deceased  partner 
comes  into  equity  for  distribution,  the 
separate  creditors,  whose  right  to  the 
assets  is  legal,  must  be  satisfied  in  the 
first  instance,  and   then   the   residue 
distributed  as  equitable  assets  among 
the  joint  creditors,  without  distinction 
between  those  claiming  by  judgment, 
and   on   simple   contract;   Ilomclc  v. 
Roijers,  8  Paige,  229.     And  as  the 
rule  in  the  distribution  of  such  assets 
is  equality,  those  of  the  joint  credi- 
tors who  hold  collateral  securities  for 


their  debts,  or  who  have  received  pay- 
ments from  the  joint  estate,  will  be 
postponed  to  others  who  have  received 
nothing,  or  who  have  no  such  security, 
until  all  stand  on  the  same  footing,  and 
then  the  remaining  assets  will  be  dis- 
tributed pro   rata.      But    securities 
held  against  sureties,  will  not  be  taken 
into  consideration,  for  their  equity  is 
superior  to  that  of  the  creditors,  and 
they  are  entitled  to  have  every  benefit 
from  the  estate  of  the  principal,  in 
relief  of  their  own  liability.     These 
principles  were  applied  in  the  case  of 
Wikler  V.  Keelcr,  3  Paige,  167.     A 
creditor's  bill  had  been  filed  to  obtain 
distribution  of  the  estate  of  a  deceased 
partner,  and  the  question  arose  out  of 
the  respective  claims  of  the  joint  cre- 
ditors to  the  separate  assets  inter  se, 
and  as  between  themselves  and  the 
separate  creditors.     It  was   held   by 
the  court  that  the  legal  claims  of  the 
separate  creditors  were  to  be  satisfied 
in  full,  in  the  first  instance,  and  that 
the  residue  of  the  fund  was  to  be  dis- 
tributed as  equitable  assets  among  the 
joint  creditors,  so  that  each  should 
stand  on  the  same  footing.     For  this 
purpose,  all  that  had  been  received  by 
each  creditor  from  the   joint  estate, 
whether  as  payment  or  security,  was 
directed  to  be  taken  into  account  in 
the  distribution,  and  the  dividends  so 
apportioned  as  to  result  in  final  equa- 
lity among  all.     But  it  was  also  de- 
cided, that  securities  held  against  the 
sureties  of  the  partnership,  were  to  be 
excluded  from  the  account.     And  the 
foundation  and  scope  of  the  whole  de- 
cision were  strikingly  shown  by  the 
further  direction,  that  the  several  se- 
curities held  by  one  of  the  creditors 
against   the   estate   of  the  deceased 
partner,  were  entitled  to  priority  over 


SILK     V.     PRIME. 


315 


the  joint  obligations  of  the  other  part- 
ners, for  as  to  several  demands  which 
could  be  enforced  at  law,  the  estate 
was  legal  assets,  but  that  the  creditor 
who  held  these  securities  could  not 
receive  any  dividend  from  the  residual 
fund  for  demands  held  by  him  against 
both  partners  jointly,  unless  necessary 
to  place  him  on  a  footing  of  equality 
with  the  other  joint  creditors. 

While,  however,  the  partners  are 
alive,  or  when  the  death  of  a  sole  surviv- 
ing partner  has  cast  the  task  of  adminis- 
tration on  his  personal  representatives, 
all  the  creditors,  joint  as  well  as  several, 
have  a  legal  claim  on  the  assets,  and 
the  doctrine  of  equitable  assets  does 
not  necessarily  come  in  play.  But  as 
the  separate  creditors  of  each  partner 
can  only  claim  through  him,  and  his 
claim  is  subject  to  an  account  with 
his  co-partner,  under  which  equity 
would  order  the  joint  eifects  to  be 
applied  in  discharge  of  the  joint  debts, 
no  payments  can  be  made  out  of  those 
effects  to  the  separate  creditors,  until 
the  joint  creditors  are  satisfied;  Tuck- 
ers V.  Oxley,  5  Cranch,  35 ;  Duncan 
V.  Fowler,  2  Paige,  400 ;  Egberts  v. 
Wood,  3  Id.  518 ;  Hutchinson  v. 
Smith,  7  Id.  26;  The  United  States 
V.  Hack,  8  Peters,  271 ;  Pierce  v. 
Jackson,  6  Mass.  242 ;  Christian  v. 
UIHs,  1  Grattan,  396 ;  Washlurn  v. 
The  Bank  of  Belloivs  Falls,  19  Vt. 
279;  Tappan  v.  Blaisdale,  5  New 
Hampshire,  190  ;  Jarvis  v.  Brooks,  7 
Foster,  57 ;  Shedd  v.  Wilson,  1  Wil- 
liams, 478;  Wilson  V.  Soper,  13  B. 
Monroe,  411 ;  Benson  v.  Fla,  4  Fogg, 
402  ;  White  v.  The  Union  Ins.  Co., 
1  Nott  &  M'Cord,  556;  Tillinghast 
V.  Chamjilin,  4  Khode  Island,  173, 
190. 

So    far,    the    rules    both    of    law 


and  equity,  are  plain,  and  coincide 
with  each  other;  //;  the  matter  of 
Smith,  16  Johnson,  102;  1  Ameri- 
can Leading  Cases,  469,  4th  ed.  But 
the  right  of  the  joint  creditors  to  the 
separate  assets  of  a  surviving  partner, 
or  of  the  partners  individually  in  their 
lifetime,  is  not  so  easily  settled.  This 
right  is  legal,  and  we  have  seen  that 
equity  will  not  control  legal  rights,  even 
for  the  purpose  of  producing  equality. 
It  would,  therefore,  appear  that  the 
joint  creditors  should  be  allowed  to 
prove  their  full  claim  against  the  sepa- 
rate estate,  after  deducting  what  they 
have  received  from  the  j  oint  estate.  At 
the  same  time,  it  is  evident  that  al- 
though the  joint  creditors  have  a  legal 
right  against  the  separate  estate,  they 
cannot  use  this  right  in  a  way  to  cause 
unnecessary  prejudice  to  the  separate 
creditors.  And  under  the  general  doc- 
trine on  which  equity  marshals  assets, 
they  may  be  bound  to  obtain  satisfac- 
tion from  the  joint  fund,  so  far  as  it 
will  go,  and  look  only  for  the  residue 
to  the  separate  fund  ;  Murray  v.  Mur- 
ray, 5  Johnson,  Ch.  60,  72.  But 
there  is  nothing  in  this  doctrine,  to 
justify  their  entire  exclusion  from  the 
separate  fund,  or  to  debar  them  from 
resorting  to  it,  on  a  footing  of  equali- 
ty with  the  separate  creditors,  to  sup- 
ply any  deficiency  which  may  exist 
in  the  joint  fund  ;  Allen  v.  Wells,  22 
Pick.  450,  456. 

This  view  is  sustained  by  the  case  of 
Tuckersy.  Oxley,  5  Cranch,  35,  where 
Marshall,  C.  J.,  held,  that  the  rights 
of  the  joint  creditors  were  valid  in 
law,  and  could  not  be  restrained  by 
equity,  except  so  far  as  assets  would 
be  marshalled  in  other  cases.  The 
question  was  as  to  the  right  of  Tuck- 
ers, who  had  a  claim  against  Henry 


316 


EQUITABLE     ASSETS. 


and  Thomas  Moore  as  partners,  to  set 
it  oif  under  the  provisions  of  the 
bankrupt  act  of  the  United  States,  in 
a  suit  brought  by  Oxley,  as  the  as- 
signee of  Thomas  Moore.  In  decid- 
ing in  favor  of  the  set-off,  the  chief 
justice  held  the  following  language : 
"It  has  never  been  doubted  in  Eng- 
land, that  a  man,  having  a  claim  on 
two  persons,  might  become  a  petition- 
ing creditor  on  the  bankruptcy  of  one 
of  them.  Such  petitioning  creditor 
has  always  been  admitted  to  prove  his 
debt  before  the  commissioners,  and  to 
receive  his  dividends,  in  proportion 
with  the  other  creditors.  He  is  then 
in  contemplation  of  the  act,  a  credi- 
tor of  the  bankrupt ;  and  consequntly, 
all  the  provisions  of  the  act  apply  to 
him  as  to  other  creditors.  This  would 
seem  to  prove,  that,  under  the  legal 
operation  of  the  act,  a  creditor  of  a 
firm,  of  which  the  bankrupt  was  one, 
and  a  creditor  of  the  bankrupt  singly, 
were  equally  creditors  of  the  bankrupt, 
in  contemplation  of  the  law,  and  were 
construed  to  come  equally  within  the 
meaning  of  the  term  as  used  in  the 
act.  If  this  position  be  correct,  the 
rules  which  we  find  laid  down  by  the 
chancellor,  for  marshalling  the  respec- 
tive funds,  are  to  be  considered  merely 
as  equitable  restraints  on  the  legal 
rights  of  parties,  obliging  them  to  ex- 
ercise those  rights  in  such  manner  as 
not  to  do  injustice  to  others.  This  is 
the  peculiar  province  of  a  court  of 
chancery.  It  is  the  same,  in  princi- 
ple, with  the  common  case  of  marslial- 
ling  assets,  where  specialty  creditors, 
who  have  a  right  to  satisfaction  out  of 
lands,  exhaust  the  personal  estate  to 
the  injury  of  simple  contract-credi- 
tors. It  is  undoubtedly  unjust,  that 
Tuckers,  having  a  claim  on  II.  &  T. 


Moore,  and  being  able  to  obtain  pay- 
ment from  H.  Moore,  should  satisfy 
that  claim  entirely  out  of  the  separate 
estate  of  T.  Moore,  to  the  exclusion 
of  other  creditors,  who  had  no  resort 
to  Henry ;  and  it  is  probable,  that  a 
court  of  chancery  might  restrain  this 
use  of  his  legal  rights  within  equi- 
table limits.  But  suppose  H.  Moore, 
also,  to  be  a  bankrupt;  or  to  be  insol- 
vent, and  unable  to  pay  the  debt; 
would  it  not  be  equally  unjust  to  ap- 
ply the  estate  of  each  individual  to 
the  discharge  of  the  several  debts,  to 
the  entire  exclusion  of  their  joint  cre- 
ditors, who,  previous  to  their  bank- 
ruptcy, had  a  legal  and  equitable 
right  to  satisfaction  out  of  the  sepa- 
rate estate  of  each." 

The  view  thus  taken,  is  sustained 
by  the  decisions  in  many  of  the  states 
of  the  Union,  which  establish  that  the 
joint  creditors  have  as  much  right  to 
the  separate  assets,  both  at  law  and 
in  equity,  as  the  separate  creditors, 
unless  there  are  special  circumstances, 
which  require  their  exclusion,  and 
will,  consequently,  be  admitted  on  an 
equal  footing,  whenever  they  are  not 
shut  out  by  the  death  of  one  partner, 
during  the  life  of  another,  and  the  con- 
sequent restriction  of  legal  liability  to 
those  who  survive  him ;  Neivman  v. 
Baglei/,  16  Pick.  570 ;  Allen  v.  Wells, 
22  Id.  450 ;  Bardwell  v.  Perry,  19 
Vermont,  292;  Camp  v.  Grant,  21 
Conn.  55  ;  Rankin  v.  Jones,  2  Jones, 
Equity,  1G9;  Bell  v.  Newman,  5  S. 
&  R.  78 ;  jSperri/'s  Estate,  1  Ash- 
mead,  347 ;  White  v.  Dougherty,  1 
j\Iartin  &  Yeager,  309 ;  Claghorn  v. 
The  Bank,  9  Georgia,  319;  Baker 
V.  Wimpee,  19  Id.  87.  Thus,  in  Bag- 
ley  V.  Newman,  and  Allen  v.  Wcth, 
the  question  of  priority  between  joint 


SILK     V.     P  K I M  E. 


817 


and  separate  debts,  was  held  to  de- 
pend on  superiority  of  diligence,  or 
the  preference  shown  by  the  debtor, 
as  in  other  cases  where  the  claims  of 
rival  creditors  are  in  question ;  while 
the  case  of  White  v.  Douglierti/,  went 
still  further,  by  deciding  that  a  part- 
nership creditor  not  only  might,  but 
must  exhaust  his  liens  on  the  separate 
estate  of  the  partners,  before  he  could 
be  entitled  to  a  dividend  out  of  the 
partnership  assets.  The  right  of  the 
joint  creditors  to  come  in  on  the  se- 
parate fund,  with  the  several  credi- 
tors, was  also  upheld  in  Bell  v.  New- 
man,  5  S.  &  R.  78 ;  and  would  still 
seem  to  be  law  in  Pennsylvania; 
Sperry^s  Estate,  1  Ashmead,  347 ; 
Cumming's  Appeal,  1  Casey,  268  : 
for  although  it  has  been  said,  in  seve- 
ral recent  instances,  that  when  there 
is  a  joint  and  separate  fund,  and  also 
joint  and  separate  creditors,  the  sepa- 
rate fund  must  be  applied,  in  the  first 
instance,  to  the  separate  debts,  and 
the  joint  fund  to  those  which  are  joint, 
yet,  this  must,  no  doubt,  be  under- 
stood as  relating  to  the  primary  appli- 
cation of  each  species  of  property, 
and  not  as  a  rule  of  exclusion ;  Bell 
V.  Newman;  Walker  v.  Eytli,  1 
Casey,  216  ;  Singizer's  Appeal,  4  Id. 
524.  A  similar  view  was  taken  in 
Wisham  v.  Lippincott,  1  Stockton, 
Chancery,  353;  and  the  rights  of  the 
joint  and  separate  creditors  said  to 
stand  on  the  same  footing;  at  all 
events,  when  the  question  arises  be- 
tween rival  executions,  during  the  life- 
time of  the  partners,  and  not  in  the 
administration  of  the  assets  of  a  de- 
ceased partner,  after  death.  And  in 
Morris  V.  Morris,  4  Grattan,  293,  the 
court  which  was  divided  in  opinion  on 
the   general   question,    decided   that 


partnership  creditors  are  entitled  to 
share  in  the  separate  estate  of  an  in- 
solvent partner,  where  they  hold  joint 
and  several  securities  for  their  debts, 
or  where  he  has  charged  all  his  debts, 
without  distinction,  on  his  real  estate, 
and  thus  given  it  the  character  of 
equitable  assets. 

These  principles  were  at  one  time 
adopted  in  England,  even  in  cases  of 
bankruptcy ;  Ex  parte  Hodgson,  2 
Brown,  C.  C.  5;  Ex  parte  Page,  lb. 
119 ;  Dvtton  v.  Morrison,  17  Vesey, 
207.  But,  by  a  sequence  of  decisions 
not  very  easy  to  reconcile,  the  English 
courts  of  equity  finally  came  to  the 
conclusion,  that  convenience,  if  not 
principle,  required  that  the  joint  cre- 
ditors should  not  only  be  confined  to 
the  joint  fund  in  the  first  instance, 
but  should  be  excluded  from  the  se- 
parate fund  altogether,  unless  the  joint 
fund  was  a  nullity,  or  the  separate 
fund  more  than  sufl&cient  for  the  pay- 
ment of  the  several  creditors.  Such, 
at  least,  is  the  well  settled  rule  in 
bankruptcy ;  Ex  parte  Elton,  3  Vesey, 
238;  Ex  parte  Clay,  6  Id.  813;  Ex 
parte  Chandler,  9  Id.  35.  And  in 
Gray  v.  Chiswell,  lb.  118,  Lord  El- 
don,  after  declaring  that  it  was  difB.- 
cult  to  say  upon  what  the  rule  was 
founded,  applied  it  to  the  administra- 
tion of  the  assets  of  a  deceased  part- 
ner, notwithstanding  the  insolvency 
of  the  surviving  partner,  chiefly  on 
the  ground,  that  the  rule  should  be 
the  same,  when  the  circumstances 
were  so  nearly  identical,  and  not 
be  left  to  depend  on  the  accident  of 
death,  or  the  nature  of  the  tribunal 
casually  entrusted  with  its  application. 

The  exclusion  of  the  joint  creditors, 
therefore,  seems  to  have  had  its  origin 
in  convenience  rather  than  in  any  broad 


318 


EQUITABLE     ASSETS. 


or  comprehensive  principle,  and  to  have 
grown  up  in  bankruptcy,  from  the  de- 
sire to  avoid  the  dehiy  and  expense 
incident  to  postponing  the  distribu- 
tion of  the  separate  estate  of  an  in- 
solvent partner,  until  the  partnership 
accounts  could  be  adjusted,  and  then 
to  have  been  extended  to  cases  arising 
in  the  administration  of  the  assets  of 
a  surviving  partner,  after  his  death, 
by  a  misapplication  of  the  equitable 
rule  of  equality,  to  the  distribution  of 
legal  assets.  The  equitable  rule  as  to 
creditors,  as  Lord  Cottenham  intimat- 
ed in  3fason  v.  Bogg,  2  Mylne  & 
Kecne,  443,  is  to  give  them  their  full 
legal  rights,  and  no  rule  can  well  be 
sound,  as  a  rule  of  equity,  which  makes 
those  rights  depend  on  the  accident 
of  death  or  insolvency,  or  allows  them 
to  be  postponed  or  defeated  by  the 
very  exigency  which  requires  their 
exercise  and  operation.  The  course 
of  the  English  courts  is  the  more 
inexplicable,  because  Lord  Lough- 
borough, who,  in  Ex  jjarte  Elton,  led 
the  way  in  returning  from  the  ground 
taken  by  Lord  Thurlow,  in  Ex  jicirte 
Jlodgmn,  to  the  earlier  doctrine  of 
Lord  Hardwicke,  based  his  argument 
upon  the  principle,  that  creditors  who 
have  a  resort  to  two  funds,  shall  not 
prejudice  those  who  have  but  one, 
which  can  never  operate  as  an  exclu- 
sion from  the  latter  fund,  unless  the 
former  is  amply  sufficient  for  payment. 
These  remarks,  however,  only  apply 
where  the  question  arises  in  the  dis- 
tribution of  the  assets  of  the  partners 
while  they  arc  still  alive,  or  of  those 
of  a  surviving  partner  after  l^is  death; 
for,  on  the  death  of  one  partner  in  the 
lifetime  of  another,  the  legal  claims  of 
the  joint  creditors  are  at  an  end,  and 
equity  will,  consequently,  be  governed 


by  its  own  rules  in  giving  them  effect; 
or  postponing  them  to  other  claim- 
ants; Wilder  V.  Keeler,  3  Paige,  167  ; 
Baker  V.  Wimiyee,  19  Georgia,  87 ; 
ante,  314.  Even  hei*e,  however, 
a  pro  rata  distribution  among  all, 
taking  the  joint,  as  well  as  the  several 
estate  into  account,  and  equalizing 
the  dividends  of  the  separate  credi- 
tors, with  those  received  from  both 
sources  by  the  joint  creditors,  would 
seem  more  equitable  than  the  course 
actually  adopted  in  England,  and  by 
those  courts  which  follow  the  English 
rule  in  this  country;  Camp  v.  Grant, 
21  Conn.  41,  55.  It  cannot  be  said  that 
the  exclusion  of  the  separate  creditors 
from  the  joint  estate,  until  the  joint 
creditore  are  satisfied,  gives  them  a 
right  to  a  similar  priority  in  the  dis- 
tribution of  the  several  estate;  for 
neither  the  separate  creditors  nor  the 
partner  through  whom  they  claim,  can 
have  a  right  to  any  portion  of  the 
assets  of  the  firm,  unless  there  is, 
or  will  be  a  surplus  after  the  pay- 
ment of  the  debts  of  the  partnership; 
while  the  joint  creditors,  who  trust 
the  partners  as  well  as  the  partnership, 
are  necessarily  entitled  to  a  share  of 
the  individual  as  well  as  the  firm  pro- 
perty ;  Bardiccll  v.  Perry,  19  Ver- 
mont, 292 ;  JVeicman  v.  Bagley,  16 
Pick.  570,  572.  The  true  rule  seems 
to  be  that  adopted  in  Sjyet-rj/'s  Estate, 
1  Ashmead,  347,  that  when  there  is 
no  joint  estate,  joint  creditors  should 
come  in  pari  passu  with  separate  cre- 
ditors, and  that  when  there  is,  the 
only  difference  should  consist  in  de- 
ducting the  amount  received  by  the 
joint  creditors  on  the  joint  estate,  from 
the  dividends  paid  to  them  out  of  the 
separate  estate.  It  has  been  repeated- 
ly   held,    that    in    contemplation    of 


SILK     V.     PRIME. 


319 


equity,  all  partnership  debts  are  sev- 
eral as  well  as  joint;  Nelson  v.  Hill, 
5  Howard,  127 ;  Camp  v.  Grant,  21 
Conn.  41,  56;  F'dyau  v.  Laverty,  3 
Florida,  72;  Morris  v.  Ilorris,  4 
Grattan,  293,  319;   Sherry's  Estate, 

1  Ashmead,  347 ;  JIaris  v.  Soutluoich, 

2  Porter,  370;  Wilkinson  v.  Hender- 
son, 1  Mylne  &  Keene,  582 ;  Story  on 
Partnership,  chap.  15,  sect.  302;  and 
if  so,  partnership  creditors  should 
stand  ou  the  same  footing  with  the 
creditors  of' the  individual  partners; 

Wisham  V.  Lippincott,   1   Stockton, 
Ch.  353 ;  Emanuel  v.  Bird,  19  Ala- 
bama, 596.     The  only  answer  which 
can  be  made  to  this  argument,  which 
would  seem  to  have  been  regarded  as 
conclusive  of  the  whole  question  by 
Story:    1  Story's   Eq.   676,  note,  is 
that  given  by  Lord  Eldon  in  Gray  v. 
Chisv)ell,  9  Vesey,  118,  that  although 
equity  will  treat  joint  debts  as  several 
to  meet  the  ends  of  justice,  when  no 
one  can  be  injured  by  the  course  thus 
pursued,  it  will  not  do  so  when  the 
fund    in    question    is   insufficient   to 
meet   all  the   demands  upon  it,  and 
when  the  effect  of  letting  in  the  joint 
creditors,  would  be  to  disappoint  other 
creditors  whose  equities  are  equal  and 
are  sustained  by  the  law.     It  follows, 
that  when  partnership  debts  are  made 
both  joint  and  several  by  statute,  all 
pretence  of  priority  on  the  part  of  the 
separate  creditors,  will  be  at  an  end,  and 
the  separate  assets  will  be  distributed 
equally  between  them,  and  the  joint 
creditors,  both  at  law  and  in  equity; 
Hassell  V.  Griffin,  2  Jones,  Equity, 
117  :  and  the  same  result  will  follow 
when  the  security  held  for  the  debts 
is  joint  and  several ;  Morris  v.  Morris, 
4  G rattan,  293;    Wilder  v.  Keeler,  3 
Paige,  167;  although  the  latter  point 


was  decided  the  other  way  in  Gan- 
son  V.  Lathrop,  25  Barbour,  55,  and 
the  court  held  bound  to  look  beyond 
the  security,  to  the  nature  of  the  con- 
sideration on  which  it  was  founded. 
It  may,  however,  be  observed,  that 
whatever  the  relation  between  the 
joint  and  separate  creditors  may  be  in 
other  particulars,  both  are  undoubted- 
ly subject  to  the  general  principle, 
that  those  who  have  two  funds,  shall 
use  both  in  a  way  not  to  inflict  unne- 
cessary prejudice  on  those  who  have 
but  one;  ante,  219;  and  that  debts 
due  by  the  firm,  should  consequently 
be  paid  in  the  first  instance  out  of  the 
partnership  assets,  and  the  surplus 
only  proved  against  the  estate  of  the 
individual  partners ;  Filley  v.  Phelps, 
18  Conn.  294,  391. 

The  view  taken  above  is,  in  a  great 
measure,  sustained   by  the  languao-e 
held  in  Arnold  v.   Hamer,  .1  Free- 
man, Ch.  509;  where  it  was  decided, 
that   as  the   joint  creditors   have  no 
legal  right  to  any  portion  of  the  assets 
of  a  deceased    partner,  whose  death 
has  cast  all  the  obligations  of  the  firm 
on  the  surviving  partners,  equity  must 
yield  to  and  follow  the  law  in  the  dis- 
tribution   of  those    assets  which   are 
purely  legal ;  but  that  equitable  assets 
should    be    distributed   among    both 
classes   of  creditors  jxiri  passu.     In 
giving   his    decision,    the    chancellor 
held  the  following  language  :  "  I  con- 
sider the  law  well  settled  upon  prin- 
ciples of  equal  justice  and  solid  reason, 
that  upon  the  death  of  one  of  several 
partners,  a  joint  creditor  has  no  claim 
for  the  payment  of  his  debt  out  of  the 
separate  estate  of  the  deceased  part- 
ner, until  the  claims  of  the  separate 
creditors  have  been  first  satisfied.     It 
is  true,  that  joint  creditors  may  come 


820 


EQUITABLE     ASSETS. 


into  equity,  to  enforce  their  claim 
against  the  estate  of  a  deceased  part- 
ner, and  equity  will  then  consider  the 
claim,  as  it  is  considered  at  law,  both 
joint  and  several;  but  this  can  only 
be  done  where  the  claims  of  the  joint 
creditors  do  not  come  in  conflict  with 
those  of  the  separate  creditors.  In 
such  case,  the  priority  of  the  separate 
creditors  is  always  preserved.  Upon 
the  death  of  one  partner,  the  claim  of 
joint  creditors  survives  against  the 
surviving  partner,  and  is  extinguished 
at  law  against  the  estate  of  the  de- 
ceased partner,  to  which  they  can  only 
resort  through  the  aid  of  a  court  of 
equity,  where  the  advantage  thus 
thrown  by  accident  upon  the  separate 
creditors,  will  be  preserved.  And  in 
such  case  it  makes  no  difference,  that 
the  surviving  partner  is  insolvent,  if 
the  assets  to  be  administered  are  pure- 
ly legal  ;■  the  separate  creditors  having 
acquired  a  priority  at  law,  and  having 
equal  ccjuity,  that  priority  will  be  pre- 
served. For  where  the  equities  are 
equal,  the  legal  right  must  prevail. 
A  different  rule  obtains  where  the  as- 
sets are  purely  equitable,  and  where, 
therefore,  both  joint  and  separate  cre- 
ditoi;^  would  have  to  seek  the  aid  of  a 
court  of  equity.  In  such  case,  neither 
party  having  a  legal  preference,  and 
the  surviving  partner  being  insolvent, 
the  claimants  would  be  decreed  to 
talic  pari  passu.  It  may,  I  think,  be 
hence  laid  down,  that  in  administer- 
ing upon  the  legal  assets  of  an  insol- 
vent partner,  his  property  should  be 
applied  to  the  payment  of  his  private 
debts,  and  partnership  claims  should 
not  be  reported  for  a  j^/o  r<(t<t  divi- 
dend." 

This  decision  which  is  equally  re- 
markable for  justice  of  thought,  and 


distinctness  of  expression,  clearly 
shows  that  where  no  rule  of  law  inter- 
venes, the  rights  of  the  joint  and 
several  creditors  to  the  separate  assets 
are  equal  in  equity,  and  of  course  that 
in  the  distribution  of  the  assets  of  a 
surviving  partner  after  his  death, 
equity  will  not  interfere  to  disturb 
the  equality  which  exists  at  law ;  and 
although  the  right  of  the  separate 
creditors  to  priority  was  asserted  in 
general  terms  in  OaA-ei/  v.  Carey,  1 
Freeman,  Ch.  546 :  yet,  as  the  facts 
were  the  same  as  in  Arnold  v.  Hatner, 
both  decisions  must  be  understood  as 
founded  on  the  same  principles.  The 
same  ground  was  taken  in  Bardwell 
V.  Perry,  19  Vermont,  202,  where  it 
was  said  that  the  rule  which  gives  the 
separate  creditors  a  prior  right  to  the 
separate  assets,  had  its  origin  in  the 
desire  to  facilitate  the  course  of  pro- 
ceedings in  bankruptcy,  and  was  with- 
out foundation  in  general  equity,  and 
that  the  partnership  creditors  had  an 
equal  right  with  the  separate  credi- 
tors, to  the  separate  property,  although 
they  might  be  compelled  to  look  in 
the  first  instance  to  the  joint  property. 
In  this  instance,  the  partners  were 
insolvent  individually,  as  well  as  the 
firm  of  which  they  were  the  members 
— a  circumstance  which  was  not  al- 
lowed to  vary  the  result. 

The  rule  which  excludes  the  part- 
nership creditors  from  any  claim  on 
the  assets  of  a  deceased  or  bankrupt 
partner,  until  the  claims  of  the  sepa- 
rate creditors  have  been  satisfied,  has 
notwithstanding  been  adopted  by 
many  of  the  courts  of  this  country,  and 
even  pushed  on  further  than  it  is  car- 
ried in  England;  Morrison  v.  Kurtz, 
1.5  Illinois,  11)8;  J/'  CHlloghv.  Dashiell, 
1  liar.  &  G.  9G ;  Glen  v.  Gill,  2  Mary- 


SILK     V.      PRIME. 


321 


land,  1 ;  R'aJgdy  v.  Carey ^  4  Har.  & 
M'Henry,  167;  MurrlU  v.  Ne'dl,  8 
Howard,  414  J  Egberts  v.  ^Yood,  3 
Paige,  518 ;  Payne  v.  Mafthews,  6  Id. 
20 ;  Eobb  V.  Stevens,  1  Clarke,  192 ; 
iac^cZ  V.  Grisicold,  4  Grilman,  25; 
M^or??-op  V.  Ward,  Dessaussure,  203 ; 
5'a;?v.  Hall,  2  M'Cord,  Cli.  269,  302; 
Rodgers  v.  Mcranda,  7  Ohio,  N.  S. 
179  ;  Smith  v.  Mallory,  24  Alabama, 
628  ;  j5ru7^e  v.  J/'  Cullough,  27  Id. 
661.  Thus,  in  Woodrop  v.  TFarc?,  a 
joint  creditor  was  refused  any  partici- 
pation in  the  estate  of  a  deceased  part- 
ner, and  thrown  back  upon  the  sur- 
viving members  of  the  firm,  although 
the  debt  had  been  reduced  to  judg- 
ment, while  all  the  partners  were  still 
alive.  The  same  rule  was  applied  in 
Smith  V.  Mallory,  in  the  distribution 
of  the  assets  of  a  deceased  partner,  not- 
withstanding the  argument  that  the 
statute  law  of  the  state  required  that 
the  estates  of  decedents  should  be  dis- 
tributed among  all  claimants  equally, 
while  in  Ganson  v.  Lathrop,  25  I3ar- 
bour,  455,  a  debt  secured  by  the  joint 
and  several  obligation  of  the  partners, 
was  held  to  fall  within  the  same  dis- 
qualification, in  spite  of  the  allega- 
tion that  obligations  which  are  seve- 
ral, ought  not  to  be  excluded  because 
they  are  also  joint.  The  same  course 
is  pursued  in  Mississippi,  whenever 
the  assets  of  an  insolvent  partner  are 
in  the  hands  of  assignees  or  commis- 
sioners for  distribution,  although  held 
to  be  inapplicable  to  the  administra- 
tion of  assets  after  death,  when  equa- 
lity of  distribution  is  said  to  be  obli- 
gatory under  the  statutes  of  the  state, 
if  not  on  principle ;  Dahlgren  v.  Dim- 
can,  7  Smedes  &  Marshall,  280.  In 
Payne  v.  Matthews,  6  Paige,  20,  it 
seems  to  have  been  thought  that  a 
VOL.  II. — 21 


partner  who  pays  joint  debts  out  of 
his  private  property,  is  entitled  to 
stand  on  the  same  footing  with  sepa- 
rate creditors ;  but  in  Kirby  v.  Car- 
penter, 7  Barbour,  373,  the  equity 
arising  out  of  such  a  payment,  was 
said  to  be  no  higher  than  that  of  the 
creditors  whose  debts  were  paid,  and 
it  was,  consequently,  held  to  give  no 
claim  to  any  portion  of  the  separate 
estate  of  a  deceased  partner,  until  the 
separate  liabilities  of  the  latter  had 
been  paid. 

Many  of  the  cases  which  have 
been  cited,  abandon  the  technical 
ground,  that  when  one  of  several 
joint  debtors  dies,  his  liability  dies 
with  him,  and  the  only  remedy  lies 
in  a  suit  against  the  survivors,  in 
which  the  priority  of  the  separate 
creditors  seems  to  have  had  its  origin, 
and  proceed  upon  the  broader  if  less 
logical  reason,  that  as  the  partnership 
creditors  have  a  prior  right  to  the 
assets  of  the  firm,  a  similar  preference 
should  be  given  to  the  separate  credi- 
tors, in  the  distribution  of  the  private 
property  of  the  partners ;  Rodgers  v. 
31eranda,  7  Ohio,  N.  S.  179.  Thus 
in  Murrill  v.  Neill,  the  rule  which 
prevails  in  England  in  bankruptcy, 
and  when  the  assets  of  a  deceased 
partner  are  administered  by  equity, 
was  applied  by  the  Supreme  Court  of 
the  United  States  to  the  interpretation 
of  a  deed  of  assignment,  by  which  the 
private  estate  of  a  partner  was  trans- 
ferred to  a  trustee  for  the  payment  of 
his  debts,  without  discriminating  be- 
tween those  which  were  due  jointly, 
and  those  which  were  contracted  in  his 
individual  capacity,  and  the  intention 
held  to  be  to  make  such  a  distribu- 
tion, as  would  have  been  made  by 
equity  had  no  assignment  been  made. 


322 


EQUITABLE     ASSETS. 


and,  consequently  to  prefer  separate 
creditors  to  the  entire  exclusion  of 
debts  due  by  the  firm,  although  the 
deed  contained  a  provision,  that  any 
surplus  which  might  remain  after  the 
purposes  of  the  trust  were  satisfied, 
should  revert  to  the  assignor,  which 
ought,  as  it  would  seem,  to  have  ren- 
dered the  instrument  fraudulent  and 
void  as  against  the  joint  creditors,  if 
they  were  entitled  to  nothing  under 
its  terms ;  Goodrich  v.  Doivns,  6  Hill, 
438  ;  Griffin  v.  Barney,  2  Comstock, 
365;  1  American  Leading  Cases,  70, 
4th  ed.  The  same  point  was  decided 
in  the  recent  case  of  Roclgers  v.  Me- 
randa,  7  Ohio,  N.  S.  179,  overruling 
Grosvenor  v.  Austin,  6  Ohio,  106 ;  and 
an  assignment  by  an  insolvent  mem- 
ber of  a  firm,  which  had  also  become 
insolvent,  in  trust  for  the  payment  of 
his  debts,  held  to  be  an  equitable  ap- 
propriation of  the  separate  property  to 
the  individual  debts  of  the  assignor, 
and  of  the  joint  property  to  the  debts 
of  the  firm,  which  made  it  the  duty 
of  the  assignee  to  exclude  each  class  of 
creditors  from  the  fund  primaril}-  de- 
voted to  the  other,  unless  a  surplus 
should  remain  after  the  demands  of 
the  latter  were  satisfied,  notwithstand- 
ing the  argument  that  the  assignment 
was  made  during  the  lifetime  of  all 
the  partners,  and  that  the  joint  credi- 
tor, consequently,  had  as  good  a  legal 
right  to  the  separate  assets  as  the 
separate  creditors.  The  courts  of 
New  Hampshire  go  still  further  in 
the  same  direction,  and  hold,  that 
the  prior  right  of  the  separate  credi- 
tors is  independent  both  of  the  cir- 
cumstances under,  and  the  forum  in 
which  it  is  sought  to  be  enforced,  and 
will  be  equally  valid,  whether  the 
question  arises  on  an  execution  at  law, 


while  all  the  parties  are  alive,  or  in 
the  distribution  of  the  estate  of  a  de- 
ceased partner  by  equity,  after  the 
assets  of  the  firm  have  vested  in  the 
survivors;  JarrisY.  Broolcs,  3  Foster, 
136;  Benson  v.  Ela,  4  Fogg,  410. 
''  The  creditors  of  the  partnership," 
said  Sawyer,  J.,  in  Benson  v.  Ela, 
"  are  entitled  to  a  preference  in  the 
application  of  the  partnership  funds, 
over  the  creditors  of  the  individual 
members;  and  this  right  of  the  part- 
nership creditors  to  priority,  does  not 
rest  upon  the  ground  that  the  mem- 
bers of  the  debtor  firm  have  a  lien 
among  themselves,  upon  the  estate 
belonging  to  the  partnership,  for  the 
payment  of  the  debts ;  but  the  claim 
is  one  which  the  law  recognizes  as  ap- 
pertaining to  the  creditor  himself,  and 
which  may  be  asserted  by  him  as  his 
legal  right;  Ferson  v.  Monroe,  1  Fos- 
ter, 462 ;  Jarvis  v.  Brooks,  3  Foster, 
136.  In  the  case  of  Jarvis  et  al.  v. 
Brooks  et  al.,  it  was  decided  that  a 
corresponding  preference  is  given  by 
law  to  the  separate  creditors  of  a 
member  of  the  firm,  as  to  his  private 
property,  over  the  claims  of  the  part- 
nership creditors  to  his  separate  es- 
tate. The  credit  given  to  the  part- 
nership upon  which  the  joint  debt 
arose,  is  considered  as  having  contri- 
buted to  augment  the  partnership 
funds,  and  that  given  to  the  indi- 
vidual members,  upon  which  the 
separate  debt  arose,  as  having  added 
to  his  separate  estate.  Substantial 
justice,  consequently,  requires  that 
the  partnership  creditors,  whose  funds 
have  thus  been  added  to  the  partner- 
ship property,  should  have  the  right, 
in  the  first  instance,  to  receive  pay- 
ment out  of  the  partnership  property, 
in  preference  to  the  creditors  of  the 


SILK     V.     PRIME. 


323 


individual  members;  aud  conversely, 
that  the  creditors  of  the  partner  whose 
separate  estate  has  been  augmented 
by  the  credit  given  to  him  personally, 
should  first  be  paid  out  of  bis  sepa- 
rate estate,  in  preference  to  any  of  the 
partnership  creditors."  And  this  view 
was  pushed  to  its  ultimate  consequen- 
ces in  Jackson  v.  Cornell,  1  Sandford, 
Ch.  348,  by  a  decision  that  the  prior 
right  of  the  separate  creditors,  lies 
beyond  the  control  of  the  debtor,  and 
that  an  assignment  of  the  whole  or 
any  portion  of  the  effects  of  an  in- 
solvent partner,  for  the  payment  of  the 
debts  of  the  firm,  is  a  fraud  in  law, 
and,  consequently,  voidable  by  those 
witb  whom  he  has  dealt  in  his  indi- 
vidual capacity. 

It  would  seem  to  be  well  settled  in 
England,  that  the  prior  right  of  the 
separate  creditors,  depends  on  the 
existence  of  partnership  property  to 
which  the  creditors  of  the  firm  may 
have  recourse  for  payment ;  and  that 
when  the  joint  estate  is  worth  nothing, 
the  joint  creditors  are  entitled  to  an 
equal  share  of  the  separate  estate 
with  the  separate  creditors;  Cotcell 
V.  Sikes,  2  Russell,  191;  3I'Cul- 
lough  V.  Dashiell ;  Murrell  v.  Neill; 
and  tbe  same  view  has  been  taken 
in  a  number  of  instances  in  this 
country ;  Emanuel  v.  Bird,  19  Ala- 
bama, 596;  Sperry^s  Estate,  1  Ash- 
mead,  347;  Bardwell  v.  Perry,  19 
Vermont,  292;  Clagliorn  v.  TTlc 
Bank,  9  Georgia,  319  ;  Rodger s  v. 
Meranda,  7  Ohio,  N.  S.  179,  190 ; 
Ladd  V.  Griswold,  4  Gilman,  25. 
This  distinction,  which  is  obviously 
inconsistent  with  the  idea  of  an  inhe- 
rent or  superior  right  in  the  separate 
creditors,  has  been  explained  by  re- 
ferriuo;  the  rule  to  which  it  consti- 


tutes an  exception,  to  the  doctrines 
under  which  equity  marshals  assets, 
when  it  becomes  plain,  that  the  ab- 
sence of  a  joint  fund  renders  it  im- 
possible to  send  the  joint  creditors  to 
it  for  satisfaction  ;  though  we  are  still 
left  in  ignorance,  why  they  should  be 
excluded  from  the  separate  fund,  when 
the  joint  fund  is  insufiicient.  In  3Tur- 
rell  V.  Neill,  and  J/'  CuUough  v.  Da- 
shiell, the  court  accordingly  expressed 
the  opinion,  that  the.  priority  of  the 
separate  creditors  grew  out  of  the  re- 
lation in  which  they  stood  to  the 
debtor,  and  the  reliance  which  they 
might  be  supposed  to  have  placed  on 
his  private  property,  and  did  not  de- 
pend on  the  presence  or  absence  of 
partnership  assets;  and  in  J)/'  Cullough 
V.  Dashiell,  Archer,  J.,  said  that  the 
joint  creditors  would  have  been  ex- 
cluded, even  if  there  had  been  no 
other  fund  to  which  they  could  look 
for  payment.  And  there  can  be  little 
doubt,  that  the  separate  creditors  have 
a  priority  in  the  distribution  of  the  as- 
sets of  a  deceased  partner,  which  is 
strictly  legal,  and  consequently  can- 
not be  defeated  by  proof  that  there  is 
no  property  or  fund  belonging  to  the 
partnership;  Wilder  v.  Keeler,  3 
Paige,  167. 

Nor  are  the  cases  less  at  variance 
with  each  other,  on  the  question, 
whether  the  exclusion  of  the  part- 
nership-creditors is  due  to  the  nature 
of  the  demand,  or  to  the  form  of  the 
contract  by  which  the  debt  is  se- 
cured, or  in  which  it  has  its  origin. 
If  the  only  objection  to  the  claim 
of  the  partnership  creditors  lie  in 
the  joint  nature  of  their  contract 
with  the  firm,  it  can  only  be  made 
when  the  death  of  one  partner, 
during  the  life  of  the  others,  has  cast 


324 


EQUITABLE     ASSETS. 


the  whole  burden  of  the  obligation  on 
them,  and  can  have  no  application  to 
the  distribution  of  the  assets  of  the 
members  of  the  firm,  while  they  are 
alive,  or  of  the  estate  of  the  last  survi- 
vor, either  before  or  after  death;  and 
may  be  obviated  in  all  cases,  by  taking 
the  joint  and  several  obligation  of  the 
partners,  instead  of  relying  solely 
upon  the  joint  promise  or  contract  of 
the  firm ;  Morris  v.  Morris,  4  Grat- 
tan,  293  ;  Rankin  v.  Jones,  2  Jones, 
Eq.  169.  If,  on  the  other  hand,  the 
prior  right  of  the  separate  creditors 
to  the  separate  assets,  be  viewed  as  a 
necessary  corollary  to  that  of  the  joint 
creditors,  to  the  assets  of  the  firm,  it 
will  exist  whenever  the  debt  is  con- 
tracted by,  and  in  the  course  of  the 
business  of  the  firm,  whether  its  form 
be  joint  and  several,  or  merely  joint, 
and  whether  the  estate,  which  is  in 
the  course  of  distribution,  is  bound 
by  the  joint  obligation,  or  has  been 
discharged  from  it  by  death.  The  for- 
mer view  is,  as  we  have  seen,  taken  in 
Virginia,  and  some  of  the  other  states 
of  the  Union;  Morris  v.  Morris; 
Rankin  v.  Jones;  the  latter  in  New 
York,  where  it  has  been  decided,  that 
the  production  and  proof  of  the  seve- 
ral obligation  of  a  deceased  partner, 
for  a  debt  of  the  firm,  will  not  vary 
or  afi'ect  the  priority  due  to  those  who 
contracted  with  him,  solely  in  his  pri- 
vate capacity,  and  not  in  the  course 
of  the  business  of  the  partnership; 
Ganson  v.  Lathrop,  25  Barbour, 
455;  the  ground  apparently  being, 
that  a  pledge  of  the  credit  of  a  part- 
ner, for  the  benefit  of  the  firyi,  places 
him  in  the  position  of  a  surety,  in  a 
contract  in  which  the  firm  is  the  prin- 
cipal ;  Wilder  v.  Keeler,  3  Paige,  107. 
It   has,  however,  been  held    in    a 


number  of  instances,  and  the  weight 
of  authority  unquestionably  is,  that  to 
call  these  principles  into  operation, 
and  entitle  the  separate  creditors  to 
priority,  the  assets  must  be  equitable, 
or  have  been  brought  by  death  or  in- 
solvency, within  the  jurisdiction  of 
equity,  and  that  chancery  will  not  in- 
terfere with  the  ordinary  course  of 
legal  proceedings,  in  order  to  prevent 
the  joint  creditors  from  obtaining  sat- 
isfaction out  of  the  separate  property 
of  the  partner,  by  any  of  the  means  or 
remedies  known  to,  and  given  by  the 
law ;  Wisham  v.  Lippincott,  1  Stock- 
ton, Ch.  353  ;  M^CuUomjJi  v.  Dashiel, 
1  Har.  &  Gill,  96 ;  Allen  v.  Wells,  22 
Pick.  450;  ClegJiorn  v.  The  Bank, 
9  Georgia,  319 ;  Baker  v.  Wimpee, 
19  Id.  87;  Allen  v.  The  Center 
Valley  Co.,  21  Conn.  130;  dimming' s 
Ap>peal,  1  Casey,  269.  The  point 
was  so  held  in  Meech  v.  Allen,  17 
New  York  R.  300;  and  a  judgment 
for  a  debt  due  by  a  firm,  held  entitled 
to  priority  of  payment  out  of  the  real 
estate  of  one  of  its  members,  over  a 
judgment  which  had  been  obtained 
against  him,  subsequently,  in  his  in- 
dividual capacity;  and  as  no  valid 
distinction  exists  on  this  point,  be- 
tween real  and  personal  property,  it 
follows  that  a  levy  under  an  execution 
for  a  debt  of  the  partnership,  upon  the 
chattels  of  one  of  the  partners,  should 
be  preferred  to  a  subsequent  levy  for 
a  debt  due  by  him  individually. 
This  course  of  decision  was  said, 
in  Allen  v.  Wells,  to  result,  neces- 
sarily, from  the  duty  of  equity  to  fol- 
low the  law,  and  give  full  eflfect  to 
legal  liens  and  priorities,  when  legal 
assets  are  in  question  ;  but  we  may 
doubt  whether  this  argument  does  not 
prove  too  much,  and  subvert  the  rule 


SILK     V.     PRIME. 


325 


which  it  professes  to  distinguish. 
Legal  assets  are  not  deprived  of  that 
character,  and  converted  into  equi- 
table, by  the  intervention  of  death  or 
insolvency,  or  even  by  being  made  the 
subject  of  a  voluntary  or  compulsory 
assignment,  for  the  benefit  of  credi- 
tors ;  and  hence,  if  the  separate  cre- 
ditors have  no  preference  in  the  dis- 
tribution of  legal  assets,  they  can 
have  no  priority,  except  when  one 
partner  dies  in  the  lifetime  of  an- 
other ;  and  the  private  property  of 
the  members  of  the  firm  may  be  ap- 
propriated by  the  partners,  during 
their  lives,  or  even  by  the  admi- 
nistrator of  a  surviving  partner,  to 
the  payment  of  the  liabilities  of 
the  co-partnership.  Nor  is  it  easy 
to  reconcile  the  refusal  of  equity  to 
interfere  with  the  course  of  the  law, 
for  the  purpose  of  giving  efiiect  to  the 
supposed  priority  of  the  separate  cre- 
ditors, with  the  preference  shown  by 
most  of  the  courts  of  this  country,  to 
a  subsequent  levy  for  a  debt  of  the 
firm,  on  the  joint  property,  over  prior 
writs,  issued  for  the  private  debts 
of  the  partners.  The  equity  of  the 
joint  creditors,  is  a  mere  shadow  or 
reflection  of  the  equity  of  the  part- 
ners ;  to  rate  the  equity  of  the  sepa- 
rate creditors  lower,  is  to  say  that  it 
is  no  equity  at  all.  And  although, 
when  equities  are  equal,  equity  fol- 
lows the  law,  and  respects  legal  rights 
and  priorities,  yet  in  contests  between 
creditors,  as  distinguished  from  pur- 
chasers, equity  measures  their  rights 
by  those  of  the  debtor,  {ante, 
108,)  and  the  necessary  consequence 
would  seem  to  be,  that  if  an  in- 
solvent partner  cannot  appropriate 
his  property  by  an  assignment,  to 
the  payment  of  the  debts  of  the  firm. 


without  a  violation  of  right,  and  com- 
mitting a  fraud  on  the  law,  {ante,') 
equity  should  interfere  to  prevent  the 
attainment  of  the  same  object,  through 
the  means  of  an  execution,  issued  by 
the  creditors  of  the  firm.  If,  in  short, 
the  separate  creditors  have  an  equi- 
table right  or  priority,  it  must  have 
an  independent  existence,  indepen- 
dently of  the  forum,  in  which  the 
contest  originates ;  if  they  have  not, 
they  can  have  no  claim  to  priority, 
either  at  law  or  in  equity. 

In  New  Hampshire,  accordingly,  the 
separate  creditors  are  preferred  to  the 
creditors  of  the  firm,  without  regard 
to  the  circumstances  under  which  the 
question  arises,  and  a  levy  for  a  sepa- 
rate debt  on  the  private  property  of 
the  partners,  held  entitled  to  the  same 
priority  over  a  prior  levy  for  the  debt  of 
the  firm ;  Jarvis  v.  BrooJcs,  3  Foster, 
136;  Benson  v.  Ela,  4  Id.  110;  and 
it  would  seem  plain,  that  there  is  no 
middle  ground  between  going  thus  far, 
and  denying  the  equity  of  the  separate 
creditors  altogether,  or  confining  it  to 
those  eases  when  death  has  put  an  end 
to  all  legal  liability  for  the  debts  of 
the  firm. 

Statutes  have  been  passed,  in  many 
parts  of  the  Union,  regulating  the  dis- 
tribution of  insolvent  estates  before  or 
after  death,  and  prescribing  the  order 
in  which  assets  shall  be  administered 
and  debts  paid,  which  have  a  more  or 
less  important  bearing  on  the  rights 
and  equities  of  the  joint  and  separate 
creditors  of  an  insolvent  firm  or  part- 
ner. Thus  a  statutory  provision  in 
North  Carolina,  that  the  partnership 
debts  shall  be  both  joint  and  several, 
has  been  held  to  give  the  joint  and 
separate  creditors  an  equal  right  in 
law  to  the  assets  of  a  deceased  partner; 


326 


EQUITABLE     ASSETS. 


and  tbus  do  away  with  the  only 
ground  on  which  one  could  be  post- 
poned to  the  other  in  equity ;  HasseU 
V.  Griffin,  2  Jones,  Eq.  117 ;  while  it 
has  been  said  in  Pennsylvania,  Con- 
necticut and  Massachusetts,  that  the 
separate  creditors  cannot  assert  a 
prior  right  to  the  separate  estate  of 
their  debtor,  after  his  death,  even  if 
entitled  to  a  preference  while  he  is 
still  alive;  because  the  statutes  of 
those  states  require  that  the  assets  of 
a  deceased  debtor,  shall  be  distributed 
equally  among  all  his  creditors,  except 
in  certain  cases  which  have  been  speci- 
fically enumerated  by  the  legislature ; 
Bell  V.  Newman,  5  S.  &  R.  78 ; 
Sperry's  Estate,  2  >  Ashmead,  347  ; 
Sparliawh  v.  Russell,  10  Metcalf, 
305;  Camp  v.  Grant,  21  Conn.  55. 
A  similar  construction  is  put  on  the 
statute  law  of  Mississippi,  and  the 
separate  creditors  denied  a  priority 
under  its  operation,  after  the  death  of 
their  debtor,  which  is  conceded  to 
them  in  his  life  time ;  Dahlgren  v. 
Duncan,  7  Smedes  &  Marshall,  280. 
But  the  ground  thus  taken,  would 
seem  somewhat  questionable,  and  the 
courts  of  Alabama  are,  perhaps,  more 
consistent  in  adopting  an  opposite  con- 
struction, and  holding  that  a  declara- 
tion in  a  statute  that  all  debts  shall 
be  paid  equally,  should  not  be  inter- 
preted as  meant  to  take  away  equities, 
or  to  put  higher  rights  on  the  same 
level  with  those  of  an  inferior  nature ; 
and  it  has  consequently  been  decided, 
that  the  priority  of  the  separate  credi- 
tors must  be  respected,  whether  the 
question  arises  before  or  after  death  ; 
Smith  V.  Mallory,  24  Alabama,  628. 
On  the  other  hand,  the  separate  debts 
have  a  preference  by  statute,  in  3Ias- 
sachusetts,  when  the  question  grows 


out  of  the  transfer  of  the  private  es- 
tate of  a  partner,  during  his  life,  to 
the  assignees  or  commissioners  in  in- 
solvency for  distribution  ;  Barclay  v. 
Phelps,  4  Metcalf,  397  ;  Sparhaick  v. 
Russell ;  Xeivman  v.  Baglcy,  16  Pick. 
579,  which  is  refused  them  both  on 
principle,  and  under  the  statute  law 
of  that  state,  when  assets  are  in  the 
hands  of  an  executor  or  an  adminis- 
trator for  administration,  or  when  they 
are  administered  by  the  partner  him- 
self, while  yet  alive ;  Nexcman  v. 
Bagley ;  thus  making  the  rights  of 
the  partners  depend  on  events  which 
are  more  or  less  fortuitous,  and  in- 
troducing two  different  rules  under 
circumstances  which  are  so  essentially 
the  same,  that  they  should  be  govern- 
ed by  the  same  principle.  The  same 
remark  applies  to  Mississippi,  where 
the  priority  of  the  separate  creditor  is 
conceded  by  the  courts,  when  the  es- 
tate of  an  insolvent  is  distributed  by 
the  law,  during  his  life  time,  and 
taken  away  by  statute  when  the  dis- 
tribution is  made  by  his  executors, 
after  his  death ;  the  effect  being,  to 
exclude  the  joint  creditors  in  those 
cases  where  they  would  formerly  have 
been  admitted  without  question,  and 
to  admit  them  where  they  would  for- 
merly have  been  shut  out  on  the 
ground,  that  the  estate  of  the  deceased 
partner  was  discharged,  and  that  the 
only  remedy  lay  in  a  suit  against  the 
survivors ;  ante,  318. 

In  Bell  V.  Neicman,  the  statutory 
rule  of  equality,  which  prevails  in 
Pennsylvania,  was  said  to  require  that 
joint  and  separate  demands  against 
a  deceased  partner,  should  be  put  on 
the  same  footing  by  giving  the  sepa- 
rate creditors,  in  the  first  place,  as 
much  of  the  separate  estate  as  came 


SILK     V.      PRIME. 


327 


to  the  joint  creditors,  from  that  portion 
of  the  joint  assets,  which  would  have 
gone  to  augment  the  separate  estate, 
had  the  partnership  accounts  been 
settled,  and  then  distributing  the  re- 
sidue of  the  separate  property  equally 
among  both  classes  of  creditors.  The 
course  thus  pursued,  would  seem  to 
be  consonant  with  justice,  apart  from 
the  provisons  of  the  statute;  because, 
the  estate  of  an  insolvent  debtor,  can- 
not be  distributed  equally  either  be- 
fore or  after  death,  unless  what  he 
owns  as  a  partner  is  taken  into  view 
as  well  as  what  he  owns  separately, 
and  the  amount  paid  his  creditors  out 
of  the  former,  deducted  from  the  divi- 
dend declared  on  the  latter;  but  the 
difficulties  attendant  on  such  a  scheme 
of  apportionment,  are,  perhaps,  too 
great  to  render  it  wise  or  convenient 
in  practice. 

It  has  been  said,  that  partnership 
assets  partake  of  the  nature  of  a  trust 
for  the  creditors  of  the  firm,  and  can- 
not be  appropriated  to  any  other  pur- 
pose, when  tbe  result  would  be  to 
leave  those  debts  unsatisfied  ;  Burtus 
V.  Tisclall,  4  Barbour,  572,  589  ;  Til- 
Unghast  v.  ChampUn,  4  Rhode  Island, 
174,  189.  And,  it  is  no  doubt  true, 
'  that  the  insolvency  of  a  firm  gives  birth 
to  an  equity  in  the  joint  creditors, 
which  they  may  enforce  by  an  execu- 
tion, followed  by  a  bill  praying  for  an 
appropriation  of  the  assets,  to  the  pay- 
ment of  the  partnership  debts,  and  an 
injunction  against  those  who  seek  to 
divert  them  to  any  other  purpose; 
Washburn  v.  The  Bank  of  Bellows 
Falls,  19  Vermont,  278;  Allen  v. 
The  Center  Valley  Company,  21 
Connecticut,  130.  But  it  is  equal- 
ly well  settled,  that  the  equity  of 
the  joint  creditors  depends  on,  and 


must  be  worked  out  through  that  of 
the  partners ;  that  they  have  no  actual 
lien,  and  merely  a  right  to  acquire  a 
lien    by    judgment    and    execution, 
which,    when    acquired,    will    relate 
back  to,  and  connect  with  their  equi- 
ty; and  that  their  priority  goes  no 
further  than  a  right  to  be  first,  which 
requires  the  use  of  proper  and  timely 
measures,  to  render  it  efi"ectual;  Camp- 
hell  V.  Mullett,  2  Swanston,  551,  575  ; 
Sliipp  V.  Earicood,  lb.  586  ;  Allen  v. 
The  Center  Valley  Co.,  21  Conn.  130, 
135;    Washburn  v.  Tlie  Bank  of  Bel- 
loics  Falls,  19  Vermont,  278,  291; 
Doner  v.  Stauffer,  1  Penna.  R.  198, 
204.     This  is  strikingly  exemplified, 
by  the   case  of   Doner  v.   Stauffer, 
which  decides,  that  when   the  part- 
nership property  is  sold,  under  sepa- 
rate executions,  against  each  of  the 
partners,  the  prior  right  of  the  joint 
creditors  will  be  wholly  defeated,  un- 
less they  take  measures  to  assert  it  by 
a  levy  before  the  sale,  and  they  will 
be  left  without  any  means  of  redress 
or  claim,  either  against  the  purchaser 
for  the  goods  themselves,  or  on  the 
proceeds  in  the  hands  of  the  sheriff". 
Until,  therefore,  a  bill  has  been  filed, 
or  an  execution  issued,   partnership 
creditors  have  nothing  which  amounts 
to  a  lien,  or  right  of  property  in  the 
partnership  assets,  which  may  be  ap- 
propriated   by  the   partners,   in   any 
manner  which  they  may  think  proper, 
and  is  not  inconsistent  with  good  faith, 
even  when  the  eflfect  of  the  appropri- 
ation is  to  postpone  or  defeat  the  pay- 
ment of  the  debts  of  the  firm ;    Ex 
parte  Ruffin,  6  Vesey,  16 ;  Hoxie  v. 
Carr,  1  Sumner,  160,  182;  Burtus 
V.  Tisdall,  4  Barbour,  572 ;    Sage  v. 
Chollar,  21  Id.  496;   Rice  \.  Bar- 
nard, 20  Vermont,  479.     And  what- 


828 


EQUITABLE     ASSETS. 


ever  the  rights  of  the  joint  and  seve- 
ral creditors  may  be  respectively, 
after  bankruptcy  or  insolvency  has 
supervened,  and  when  funds  are  in 
the  hands  of  a  court,  or  of  commis- 
sioners, for  distribution,  they  do  not 
reach  sufficiently  fiir  to  divest  the 
partnership  or  the  individual  partners, 
of  those  powers  which  are  necessarily 
incident  to  the  ownership  and  posses- 
sion of  property.  Hence, while  it  is  uni- 
versally conceded,  that  a  partner  may, 
under  ordinary  circumstances,  make 
advances  out  of  his  separate  property, 
for  the  payment  of  the  debts  of  the 
firm ;  Morris  V.  Morris,  4  Grattan, 
293  ;  it  is  equally  well  settled,  that 
the  firm  may,  by  common  consent, 
apply  a  portion  of  the  joint  assets  to 
the  liquidation  of  the  private  debts 
of  one  or  more  of  its  members.  But 
there  are  a  number  of  cases,  which 
take  the  g;round,  that  when  tbe  firm 
breaks,  or  becomes  insolvent,  these 
principles  cease  to  be  applicable,  and 
the  partnership  assets  become  charged 
with  a  trust  for  the  payment  of  joint 
creditors,  while  the  private  property 
of  the  individual  partners  is  irrevoc- 
ably appropriated  to  the  discharge  of 
their  individual  debts;  Collins  v. 
Hood,  4  M'Lcan,  186.  In  Walceman 
V.  Graver,  4  Paige,  23,  and  Pat/ne 
v.  MaUhcws,  6  Id.  19;  11  Wendell, 
187  ;  the  latter  point  was  treated  as 
doubtful,  in  the  court  below,  and  sub- 
sequently in  the  Court  of  Errors;  but 
the  subsequent  case  of  Jackson  v. 
Cornell,  1  Handford,  Chancery,  348, 
took  the  ground,  that  the  separate  as- 
sets constitute  the  fund  for  the  pay- 
ment of  the  separate  debts,  and  the 
joint  assets,  for  those  debts  which  are 
joint,  and  that  neither  fund  can  be 
applied  to  any  other  purpose,  to  the 


injury  of  the  claimants  upon  it,  with- 
out fraud  ;  and  it  was,  consequently, 
decided  that  an  assignment  by  a  part- 
ner, would  be  invalidated  by  the  ap- 
propriation of  any  portion  of  the  pri- 
vate  assets,   to  the  payment  of   the 
debts  of   the  firm.      The  same  rule 
was  applied  conversely,  in  Burtus  \. 
Tisdall,  4  Barbour,  571;  and  the  ap- 
propriation of  the  assets  of  an  insol- 
vent firm,  to  the  payment  of  separate 
debts,  with  the  concurrence  of  all  the 
members  of  the  partnership,  held  as 
much  a  fraud  upon  the  joint  creditors, 
as  if  it  had  been  made  by  one  of  the 
partners,  in  violation  of  the  rights  of 
the  others.     This  view  is  carried  to 
its  fullest    extent,  by  the  courts  of 
New  Hampshire ;   where   it  is  held, 
that  the  equity  of   the   partnership 
creditors    is    their    equity,    and    not 
merely  the   equity  of   the   partners, 
and  cannot    be    defeated  by  any  act 
on  their  part,  whether  done  individu- 
ally or  in  their  collective  eapacityj  and 
that  the  assets  of  the  firm,  consequent- 
ly, cannot  be  appropriated  after  it  has 
become  insolvent,  to  any  other  pui*- 
pose  than  the  partnership  debts;  Mor- 
rison V.  Blodgett,  8  New  Hampshire, 
250;   French  v.  Lovejoij,  12  Id.  458; 
Jarrisy.  Brooks,  "i  Foster,  136;  Ben- 
son V.  Ela,  4  Fogg,  402  ;  Person  v. 
Monroe,  1  Foster,  462.     The  equity 
of  the  joint  creditors  is  viewed  as  in- 
dependent of  that  of  the  partners, 
and  as  following  the  assets  when  trans- 
ferred to  a  new  partnership,  on  the  dis- 
solution of  the  firm  ;  Benson  v.  Pla  ; 
and  every  transfer  of  the  property  of 
a  firm,    which   tends  to  defeat   part- 
nership  creditors,   treated  as  fraudu- 
lent, and   consequently    voidable,  al- 
though made  for  the  express  purpose 
of  paying  the  separate  debts  of  the 


SILK     V.     PRIME. 


329 


partners;  Ferson  v.  Monroe;  while 
the  prior  right  of  the  separate  credi- 
tors, to  the  private  property  of  the 
partners,  is  placed  on  the  same  foot- 
ing, and  held  to  be  a  necessary  result 
of  the  preference  shown  to  the  credi- 
tors of  the  firm,  when  the  partner- 
ship property  is  in  question ;  Jar- 
vis  V.  Brooks.  The  rule  is  said  to  be 
the  same  at  law  and  in  equity,  and  to 
apply  with  as  much  force  between 
rival  executions,  as  when  the  partner- 
ship assets  are  in  the  hands  of  a  court 
or  of  an  assignee,  for  distribution ; 
and  it  has  been  held  to  follow,  that 
when  the  same  property  is  taken  un- 
der two  different  writs,  one  being 
for  a  debt  due  by  the  firm,  and  the 
other  for  a  demand  against  one  of  the 
partners,  individually,  priority  will 
depend  not  on  the  dates  of  the  levies 
respectively,  but  on  whether  the  pro- 
perty is  joint  or  separate,  a  preference 
being  given  to  the  joint  creditor,  in 
the  former  case,  and  to  the  separate 
creditor,  in  the  latter,  and  the  other 
denied  all  right,  until  his  competitor 
is  satisfied;  Morrison  v.  Blodgett,  8 
New  Hampshire,  250 ;  Jarvis  v. 
Brooks;    Benson   v.    Ela. 

The    better    opinion    would,    how- 
ever, seem  to  be,  that   the  equities 
between  the  joint  and  separate  cre- 
ditors of  the  members  of  a  partner- 
ship, depend   solely  upon  the    equi- 
ties of  the  partners  themselves ;  Ex 
parte   Ruffin,    6  Vesey,    119,    127; 
Hoxiey.Carr,  1  Sumner,  172;  Water 
man  v.  Hunt,  2  Rhode  Island,  298 
Sage  v.   Clwllon,  21  Barbour,  596 
Morris  v.   Morris,  4   Grattan,   293 
Bell  V.   Newman,    5    S.    &    R.   78 
Grosvenor  v.  Austin,  6  Ohio,  103 
Reese    v.    Bradford,     13     Alabama, 
837;     Sanderson    v.    Stockdale,    11 


Maryland,  5G3 ;    Snodgrass    Ajypeal, 

I  Harris,  470 ;  Ladd  v.  Griswold,  4 
Gilinan,  25 ;  and  may,  therefore, 
be  discharged  by  their  acts  or  agree- 
ments ;  Glenn  v.  Gill,  2  Maryland,  IG  ; 
Ex  parte  Rujffin  ;  Ex  parte  Williams, 

II  Vesey,  5;  Reese  v.  Bradford,  13 
Alabama,  837  ;  Waterman  v.  Hunt. 
The  former  part  of  this  proposition  is 
sustained  by  a  great  weight  of  autho- 
rity, and  the  latter  would  seem  to 
flow  from  it  as  a  necessary  conse- 
quence, it  being  difficult  to  under- 
stand that  a  derivative  equity  can 
rise  higher  than  the  source  in  which 
it  has  its  origin,  or  survive  the  ex- 
tinction of  that  from  which  it  is  de- 
rived; Reese  v.  Bradford.  Hence, 
when  the  contract  of  partnership  is 
such  as  to  deprive  the  partners  of  the 
right  to  have  the  partnership  assets 
applied,  in  the  first  instance,  to  the 
payment  of  the  firm  debts,  it  cannot 
be  enforced  by  the  partnership  credi- 
tors ;  Price  v.  Barnard,  20  Vermont, 
479 ;  and  a  decision  that  two  persons 
do  not  stand  in  such  a  relation,  as  to  give 
either  of  them  a  priority  over  the  sepa- 
rate creditors  of  the  other,  will  show 
conclusively  that  the  common  pro- 
j^erty  should  follow  the  ordinary  rule 
of  distribution,  instead  of  being  appro- 
priated to  those  who  have  contracted 
with  both  jointly,  to  the  exclusion  of 
others,  who  may  have  given  credit 
solely  to  one ;  Glenn  v.  Gill,  2  Mary- 
land, IG.  And  when  the  business  of 
a  firm  is  carried  on  by  one  of  the  part- 
ners, while  the  other  lies  dormant,  the 
separate  creditors  of  the  active  part- 
ner will  stand  on  the  same  footing 
with  the  creditors  of  the  partnership ; 
Baldwin  v.  Lord,  6  Pick.  348 ; 
Cammack  v.  Johnson,  1  Green,  Ch. 
163  ;  because,  under  these  circumstan- 


330 


EQUITABLE     ASSETS. 


ces,  there  is  no  equity  as  between  the 
partners;  Ton  Valcn  v.  Russel,  13  Bar- 
bour, 590 ;  and  there  consequently 
can  be  none  in  favor  of  those  who 
chiim  under  them  jointly  as  creditors; 
Brown's  Appeal,  5  Harris,  480.  It 
has  accordingly  been  decided,  in  a 
number  of  instances,  and  would  seem 
well  settled,  that  a  transfer  of  the  as- 
sets of  a  partnership  to  one  of  its  mem- 
bers, by  the  firm,  or  with  their  con- 
sent and  approbation,  will  discharge 
the  equity  of  the  joint  creditors,  and 
leave  the  property  which  forms  the 
subject  of  the  transfer,  free  to  take 
any  course  which  may  be  given  it 
subsequently,  either  by  the  law  or  by 
the  act  of  the  assignee;  Ex  parte 
Ruffin,  6  Vesey,  119  ;  Reese  v.  Brad- 
ford, 13  Alabama,  837 ;  Rankin  v. 
Jones,  2  Jones,  Eq.  169.  It  was  ac- 
cordingly held,  in  Ladd  v.  Grisivold, 
4  Gilman,  25,  that  joint  assets,  which 
had  been  transferred  to  one  of  the 
partners  at  the  dissolution  of  a  firm, 
were  distributable  equally  among  the 
joint  and  several  creditors,  at  his 
death,  although  the  transfer  had  been 
made  with  the  understanding  that  he 
should  assume  the  whole  responsi- 
bility of  the  partnership  debts.  A 
similar  view  was  taken  in  Sac/e  v. 
Chollar,  21  Barb.  596 ;  and  a  bona 
fide  sale  of  the  partnership  property, 
by  one  partner  to  another,  said  to  put 
an  end  to  his  equity,  and  with  it,  to 
that  of  the  joint  creditors,  who  could 
henceforth  claim  no  priority  over  the 
separate  creditors  of  the  purchaser : 
while  in  Ex  parte  Williams,  II  Vesey, 
5,  the  joint  creditors  werg  held  to 
have  been  deprived  of  their  priority, 
by  a  dissolution  of  the  firm,  attended 
by  an  assignment  of  the  partnership 
property  to  one  of  the  partners,  in 


consideration  of  an  engagement  on 
his  part  to  pay  the  partnership  debts, 
although  a  commission  of  bankruptcy 
was  sued  out  against  him  in  less  than 
a  month  from  the  date  of  the  trans- 
fer. The  same  principle  has  been 
applied  on  several  other  occasions, 
and  would  seem  too  well  settled  to  be 
questioned  as  law;  Wilsoji  v.  Soper, 
13  B.  Monroe,  411 ;  Waterman  v. 
Hunt,  2  Rhode  Island,  298 ;  Hicker- 
son  V.  M^Fadden,  1  Swan,  258 ;  Kim- 
Inll  V.  Thompson,  13  Metcalf,  283; 
Bullitt  V.  The  Methodist  Episcopal 
Church,  2  Casey,  108;  Ketchum  v. 
DurJcee,  1  Barbour,  Ch.  480.  Many 
of  the  cases,  however,  couple  the 
enunciation  of  this  rule  with  the  pro- 
position, that  the  transfer  must  be 
hona  fide  in  order  to  be  valid,  and  if 
made  in  bad  faith,  will  not  serve  as  a 
barrier  to  the  preference  due  to  the 
creditors  of  the  partnership.  There 
can  of  course  be  no  doubt,  that  a  sale 
made  in  fraud  of  creditors,  may  be 
set  aside  by  those  who  are  injured  by 
it,  whether  their  claims  are  joint  or 
several;  Sanderson  v.  Stockdah,  11 
Maryland,  563 ;  the  difficulty  is  to 
know  what  amounts  to  fraud,  and 
whether  that  will  be  fraudulent  when 
partnership  assets  are  in  question, 
which  would  not  have  that  character 
under  ordinary  circumstances.  Debt- 
ors have  in  general  a  right  to  prefer 
particular  creditors  or  classes  of  credi- 
tors, even  when  the  result  is  or  may 
be  the  entire  exclusion  of  the  rest,  and 
hence  a  firm  is  unquestionably  entitled 
under  ordinary  circumstances,  to  ap- 
ply the  partnership  assets  to  the  pay- 
ment of  the  private  debts  of  the  part- 
ners, instead  of  the  joint  debts  of  the 
firm.  But  we  have  seen  that  tiie  cases 
of  Person  v.   Monroe  and  Burtus  v. 


SILK     V.     PRIME. 


331 


Tisdall,  take  the  ground  that  the 
right  of  the  partners  to  appropriate 
their  common  property  by  common 
consent,  to  the  payment  of  those  who 
have  contracted  with  them  individu- 
ally, ceases  upon  insolvency,  and  that 
they  can  thenceforth  make  no  dispo- 
sition of  the  joint  assets  which  will 
interfere  with  the  payment  of  the 
joint  debts,  although  it  be  by  appro- 
priating them  to  the  discharge  of 
their  individual  liabilities.  But  the 
weight  of  authority  unquestionably 
is,  that  insolvency  will  not  take 
away  the  right  to  make  an  assign- 
ment of  the  partnership  assets,  either 
to  one  of  the  partners,  or  to  a  third 
person;  Reese  v.  Bradford^  13  Ala- 
bama, 837;  and  the  better  opinion 
seems  to  be,  that  it  will  not  pre- 
clude the  application  of  the  part- 
nership assets  to  private  debts  by 
the  act,  or  with  the  consent  of  all 
the  partners ;  Bakei-'s  Ajjpeal,  9  Har- 
ris, 76.  If  the  priority  of  the  joint 
creditors  grows  out  of,  and  is  limited 
to  the  equity  of  the  partners,  the 
partners  may  certainly  put  an  end  to 
its  existence,  by  any  act  not  at  vari- 
ance with  right  and  justice,  and,  con- 
sequently by  appropriating  their  pro- 
perty to  the  payment  of  their  debts, 
whether  joint  or  several.  It  is  ne- 
cessary to  distinguish  between  the 
right  of  partnership  creditors  as  cre- 
ditors, and  the  preference  given  to 
them  as  creditors  of  the  firm,  the 
former  having  an  independent  exist- 
ence, and  lying  beyond  the  reach  or 
control  of  the  partners,  while  the  lat- 
ter is  a  creature  of  the  partnership 
contract,  and  is,  consequently,  de- 
pendent on  the  pleasure  of  those 
by  whom  that  contract  was  made,  and 
may,    consequently,   be    determined. 


"  It  is  well  settled,"  said  Lewis,  C.  J., 
in  Baker's  Appecd,  **  that  the  right 
to  confine  each  partner,  or  those  who 
claim  title  under  him,  to  his  interest  in 
the  surplus,  after  payment  of  the  part- 
nership debts,  is  an  equity  which  rests 
in  the  other  partners  alone,  and  not 
in  the  creditors  of  the  firm.  The 
latter  have  no  lien  on  the  property, 
and  must  work  out  their  preference 
in  the  distribution  of  the  partnership 
funds,  entirely  through  the  medium 
of  the  partners  whose  interest  remain 
undisposed  of;  Story's  Equity,  sec. 
1253.  If  they  consent  or  submit  to 
a  disposition  of  the  assets,  the  prefer- 
ence of  the  creditors  is  at  an  end,  and 
they  must  rely  upon  the  personal  re- 
sponsibility of  the  partners  who  con- 
tracted the  debts.  Where  one  partner 
sells  his  interest  to  another,  in  con- 
sideration of  an  engagement  by  the 
latter  to  pay  the  partnership  debts, 
the  rule  is  the  same.  The  engage- 
ment to  pay  them  is  but  a  personal 
contract.  It  creates  no  lien  on  the 
property.  It  follows  as  a  necessary 
consequence,  that  if  the  partner  who 
has  acquired  the  interests  of  his  for- 
mer associates,  and  in  whom  resides 
the  right  to  appropriate  the  partner- 
ship assets  to  the  payment  of  partner- 
ship liabilities,  thinks  proper  to  exer- 
cise his  dominion,  and  to  make  a  dif- 
ferent disposition  of  them,  he  has  a 
right  to  do  so ;  and  the  preference  of 
the  partnership  creditors  engrafted 
upon,  and  deriving  its  support  from 
his  equity,  ceases  to  exist.  The  scion 
dies  with  the  stock.  These  pi'inciples 
are  announced  in  Story  on  Partner- 
ship, sects.  358,  359 ;  Gow  on  Part- 
nership, ch.  5,  sect.  1,  and  Collyer  on 
Partnership,  b.  4,  ch.  2,  sect.  1 ;  and 
appear  to  be  fully  sustained   by  Ex 


332 


EQUITABLE     ASSETS. 


parte  Bitffin,  6  A^esey,  jun.  126 ;  Tai/- 
lor  V.  Fields,  4  Id.  396 ;  Kelli/'s  Ap- 
jycol,  4  Harris,  59;  11  Vesey,  jun.  3; 
10   Id.    347;    Doner  v.   Staitffer,  1 
Penn.  R.  198 ;    Camphcll  v.  MaUctt, 
2  Swanst.  552,  and  other  authorities. 
Lord    Eldon,    in    Ex  imrte    Rnffin, 
seemed  to  think  that  if  the  right  to 
dispose  of  the  assets  did  not  exist  in 
the   partners,   '  no   partnership   could 
ever  arrange  its  affairs.'     And  Chief 
Justice  Gibson  has  shown,  in  Doner 
V.  Staiiffcr,  that  after  a  sale  of  the  in- 
terest of  one  partner,  the  equity  and 
the  interest  of  the  remaining  partner, 
is  the  subject  of  sale  on  a  separate 
execution  against  him,  which  passes 
the  entire  interest  to  the  purchaser. 
And  that  where  the  interest  of  each 
is  sold  on  separate  executions  for  their 
individual  debts,  the  partnership  cre- 
ditors can  neither  follow  the  property 
in  the  hands  of  the  sheriff's  vendee, 
Dor  claim  any  portion  of  the  proceeds 
of  sale.     There   can   be  no  stronger 
illustration  than  this  of  the  principle 
that  the  partnership  creditors  have  no 
equity  of  their  own,  upon  which  they 
can   enforce  a  preference,  or  control 
the  partners  in   exercising  dominion 
over  their  assets,  so  long  as  they  re- 
main unincumbered  by  liens." 

The  view  thus  taken,  is  fully  sus- 
tained by  the  prior  and  subsequent 
decisions  in  Pennsylvania,  and  in 
many  other  parts  of  the  Union;  Doner 
V.  Stauffer,  1  Pennsylvania  II.  198; 
BuIUtt  V.  The  Metliodist  Church,  2 
Casey,  108 ;  Siegcl  v.  Chidscij,  4  Id. 
279 ;  Rankin  v.  Jones,  2  Jones,  Eq. 
209 ;  Allen  v.  The  Center  Vulleij  Co., 
21  Conn.  130;  Rice  v.  Barnard,  20 
Vermont,  479;  Wilson  v.  S"pcr,  13 
13.  Monroe,  411,  which  seem  to  show, 
if  they  do  not  actually  establish,  that 


the  right  to,  and  control  of  the  part- 
nership property  rest  absolutely  in 
the  partners,  and  that  they  are  en- 
titled to  make  any  disposition  of  it 
which  they  think  proper,  and  which 
is  not  attended  with  actual  fraud,  even 
when  the  result  is  to  postpone  the 
joint  to  the  separate  creditors,  and  to 
satisfy  the  demands  of  the  latter  to  the 
entire  exclusion  of  those  of  the  former. 
And  in  Snodgrass^  Appeal,  1  Har- 
ris, 471,  475,  the  court  went  to  the 
length  of  deciding  that  forbearance  to 
sell  under  an  execution  issued  for 
the  private  debt  of  one  of  two  part- 
ners, on  the  faith  of  a  promise  by  the 
other  to  pay  the  debt,  defeated  the 
priority  which  would  otherwise  have 
been  due  to  a  subsequent  levy  for  the 
joint  debt  of  the  firm;  the  equity  of 
one  of  the  partners  being  bound  by 
the  promise,  and  that  of  the  other  by 
the  levy  made  by  the  sheriff,  and 
there  being,  consequently,  nothing  on 
which  the  partnership  creditors  could 
found  a  superiority  over  those  of  the 
individual  partners. 

The  question  was  examined  in  the 
recent  case  of  Allen  v.  The  Center 
Valley  Co.,  21  Conn.  130;  and  the 
priority  of  the  joint  creditors  treated 
as  an  inchoate  equity,  which  fell  short 
of  being  a  lieu  or  right  of  property, 
and  might,  consequently,  be  defeated 
by  a  sale  of  the  assets  of  the  firm  to 
one  of  its  members,  or  by  their  appro- 
priation to  the  private  debts  of  the 
partners,  although  with  full  know- 
ledge that  the  partnership  was  insol- 
vent; except,  perhaps,  in  cases  when 
both  parties  are  aware  that  the  object 
is  to  defeat  the  partnership  creditors, 
and  are  consequently  guilty  of  con- 
curring in  a  common  wrongful  or 
fraudulent  purpose.     We  may  doubt 


SILK     V.     PRIME. 


333 


whether  this  latter  qualification  does 
not  go  too  far,  and  the  decision,  cer- 
tainly, goes  quite  far  enough  in  favor 
of  the  partnership  creditors,  if  taken 
with  the  qualification.  Unless  the 
general  rule,  that  a  debtor  may  pay 
one  set  of  creditors,  even  to  the  ex- 
clusion of  the  rest,  is  inapplicable  to 
partners,  they  may  apply  the  part- 
nership property  to  the  payment  of 
their  individual  debts,  if  such  is  their 
common  choice  or  pleasure,  and  the 
separate  creditors  would,  therefore, 
seem  entitled  to  accept  payment  when 
oflfered  to  them,  out  of  the  partner- 
ship assets,  with  the  consent  of  all 
the  partners,  even  if  they  are  aware 
that  the  necessary  result  will  be  to 
postpone  or  frustrate  the  claims  of 
the  joint  creditors.  Thus,  in  Siegel 
V.  Chidset/,  4  Casey,  279,  the  court 
said,  that  as  the  priority  of  the  joint 
creditors  rested  solely  on  the  equity  of 
the  partners,  it  might  be  controlled  or 
defeated  by  the  firm,  notwithstanding 
its  insolvency,  and  went  on  to  decide, 
that  the  partnership  assets  might,  con- 
sequently, be  appropriated  by  common 
consent,  to  the  payment  of  money 
which  had  been  borrowed  on  the  in- 
dividual credit  of  one  of  the  partners, 
and  subsequently  appropriated  to  the 
use  of  all.  The  view  thus  taken,  de- 
rives additional  support  from  the  lan- 
guage held  in  Rankin  v.  Jones,  2 
Jones,  Equity,  169,  where  a  transfer 
of  the  assets  of  a  firm  to  one  partner, 
by  the  others,  was  held  to  give  him 
an  unqualified  right  of  disposition, 
which  he  might  employ  in  any  man- 
ner which  the  law  would  sanction, 
under  ordinary  circumstances,  and 
therefore  for  the  payment  of  his  pri- 
vate debts,  to  the  exclusion  of  those 
of  the  partnership.     And  these  deci- 


sions are  indirectly  confirmed  by  the 
case  of  Neicman  v.  Bagley,  16  Pick. 
570,  which  decides  in  direct  opposi- 
tion to  Ferson  v.  Ilonroe,  1  Foster, 
462,  and  Jackson  v.  Cornell,  1  Sand- 
ford,  Ch.  348,  that  the  insolvency  of 
a  partner,  will  not  preclude  him  from 
applying  separate  property  to  the  pay- 
ment of  the  debts  of  the  firm,  al- 
though the  necessary  result  may  be 
to  postpone  or  disappoint  his  private 
creditors,  whence  an  argument  may  be 
drawn  in  favor  of  the  exercise  of  a 
similar  power  by  the  firm,  over  the 
partnership  property,  for  the  benefit 
of  the  creditors  of  an  individual  part- 
ner. The  subject  is,  however,  un- 
questionably involved  in  doubt,  in 
point  of  authority,  if  not  of  princi- 
ple ;  and  while  some  of  the  cases  take 
the  ground,  that  a  firm  does  not  lose 
the  right  to  apply  partnership  assets 
to  separate  liabilities,  by  being  in  debt 
or  insolvent;  Allen  v.  The  Center 
Valley  Company;  Siegel  Y.  Cliidsey ; 
there  are,  as  we  have  seen,  others 
which  maintain  the  contrary  opinion, 
that  a  transfer  to  private  creditors  will 
be  invalid  in  every  instance,  where 
they  have  notice,  or  knowledge,  that 
the  assets  of  the  firm  are  insufficient  for 
the  payment  of  the  joint  debts ;  Bur- 
tus  v.  Tisdall,  4  Barb.  571.  If  the 
case  of  Siegel  v.  Chidsey,  can  hardly 
be  considered  as  decisive,  because  the 
money  which  constituted  the  conside- 
ration of  the  debt,  had  been  applied 
to  the  use  of  the  partnership,  al- 
though borrowed  on  the  individual 
credit  of  one  of  the  partners,  the  weight 
due  to  Burtus  v.  Tisdall,  is  dimi- 
nished by  the  circumstance,  that  the 
transfer  would  seem  to  have  been 
fraudulent  in  fact,  and  apart  from  the 
position  of  the  complainants,  as  ere- 


834 


EQUITABLE     ASSETS. 


ditors  of  the  partnership ;  and  the 
question  must  be  conceded  to  be  one 
of  those  which  show  that  the  law  is  a 
system  of  reason,  and  not  of  arbitrary 
rules,  by  showing  that  it  partakes  of 
the  uncertainty  attendant  on  all  the 
operations  of  the  intellect,  when  the 
premises  have  to  be  sought,  and  are 
not  given. 

It  has  been  held,  in  some  instances, 
and  would  seem  well  settled,  that  joint 
debts  will  not  be  entitled  to  priority 
over  those  which  are  separate,  in  the 
distribution  of  the  assets  of  the  firm, 
nor  be  postponed  when  the  private  pro- 
perty of  the  partners  is  in  question, 
unless  they  are  contracted,  for  or  on 
account  of  the  partnership,  which, 
when  the  rights  of  third  persons  are 
in  question,  must  be  shown  by  extrin- 
sic evidence,  and  cannot,  as  it  would 
seem,  be  inferred  from  the  mere  fact 
that  the  bond  or  purchase  from  or  by 
which  the  debt  arose  or  was  called 
into  being,  was  made  or  executed  by 
the  partners  jointly,  without  some 
proof  that  it  grew  out  of,  or  was  con- 
tracted in  the  course  of  the  business 
of  the  partnership;  Snochjrass'  Ap- 
peal, 1  Harris,  471. 

We  have  seen,  that  as  the  equity  of 
the  joint  creditors  is  a  right  to  be  first, 
if  they  take  the  proper  steps  to  be  so, 
and  neither  a  jus  in  re  nor  ad  rem  ; 
Doner  V.  Stauffer,  1  Penna.  11.  19S ; 
they  cannot  assert  a  specific  claim  to 
the  partnership  assets,  either  in  the 
hands  of  the  partners  themselves,  or 
after  they  have  been  transferred  to 
third  persons,  even  when  the  transfer 
is  a  fraud  upon  them,  or  on  creditors 
generally  ;  and  that  the  only  remedy 
under  such  circumstances,  lies  in  ob- 
taining a  judgment,  and  issuing  exe- 
cution, as  in  other  cases,  when  sales 


are  made  for  the  purpose  of  hindering 
or  delaying  the  collection  of  debts  j 
Sage  v.  Chollar,  21  Barbour,  596 ; 
Rice  V.  Barnard,  20  Vermont,  479  ; 
Crq^pcn  v.  Hudson,  3  Kernan,  161 ; 
and  then  resorting,  if  necessary,  to  a 
bill  in  equity,  to  remove  any  obsta- 
cles which  may  impede  the  course  of 
legal  proceedings,  it  being  well  set- 
tled, that  a  creditor  cannot  come  into 
chancery  for  assistance,  until  he  has 
established  his  right,  and  exhausted 
his  remedies  at  law;  Hendricks x.  Ro- 
binson, 2  Johnson,  Ch.  283.  A  bill 
filed  to  reach  assets,  transferred  in 
fraud  of  partnership  creditors,  and  ap- 
propriate them  to  the  payment  of  the 
joint  debts,  was  sustained  in  San- 
derson  v.  Stockdale,  11  Maryland, 
563 ;  but  the  decision  was  based  on 
the  statute  law  of  Maryland,  and  is 
not  an  authority  on  the  general  ques- 
tion. And  the  rule  has  been  held  to 
be  the  same,  even  when  the  sale  by 
one  partner  to  another,  is  attended  by, 
and  made  on  the  faith  of  an  express 
promise,  to  assume  or  pay  the  part- 
nership debts;  because  the  mere  fact 
of  parting  with  the  property,  and  ac- 
cepting a  personal  obligation  in  its 
stead,  shows  an  intention  to  rely  upon 
the  one,  and  waive  the  lien  or  hold 
on  the  other,  and  the  equity  of  the 
joint  creditors  necessarily  falls  with 
that  of  the  partners ;  Bullitt  v.  The 
Methodist  Ej[)iscopal  Church,  2  Casey, 
108;  Baker's  Appeal,  9  Harris,  76; 
Reese  v.  Bradford,  13  Alabama,  837  ; 
Rankin  v.  Jones,  2  Jones,  Equity, 
169.  "  One  partner,"  said  Dargau,  J., 
in  Reese  v.  Bradford,  "  may  sell  to 
his  co-partner,  and  if  the  sale  is  fair, 
it  will  vest  the  exclusive  title  in  his 
co-partner.  See  Story  on  I'art.  510  ; 
Ex  parte  Rujffin,  6  Vesey,  119,  126  ; 


SILK     V.     PRIME. 


335 


11  Vesey,  3,  5,  8.  If  the  considera- 
tion of  the  transfer  be,  that  the  part- 
ner buying,  shall  pay  the  debts,  this 
will  not,  by  force  of  the  contract, 
raise  a  trust  in  favor  of  the  creditors, 
because  they,  (the  creditors,)  derive 
their  lien  from,  or  through  the  part- 
ners ;  and  if  the  retiring  partner  parts 
with  his  lien,  by  terms  of  the  con- 
tract, and  takes  the  personal  security 
of  the  other,  to  pay  tlie  debts,  it 
would  be  diflGicult  to  maintain  the 
proposition,  that  a  creditor  could  as- 
sert a  lien  through  the  retiring  part- 
ner, by  virtue  of  an  act  that  extin- 
guished the  lien  of  the  partner  him- 
self. See  Story  on  Part.  510 ;  Gow 
on  Partnership,  238-241."  There  is, 
however,  no  reason  to  doubt,  that  a 
transfer  of  partnership  assets  may  be 
made,  under  circumstances  of  such 
special  trust  and  confidence,  as  to  de- 
note an  intention  to  preserve  the  lien, 
instead  of  waiving  it,  and  thus  give 
rise  to  a  trust  in  favor  of  the  joint 
creditors,  which  may  be  enforced  by 
a  bill  in  equity;  as,  for  instance, 
when  the  partner  who  receives  the  as- 
sets, agrees  to  appropriate  them  spe- 
cifically to  the  payment  of  the  debts 
of  the  firm,  and  consequent  exonera- 
tion of  the  other  partners  ;  Wildes  v. 
Chapman,  4  Edwards,  Ch.  669 ;  *S'e- 
dam  V.  Williams,  4  M'Lean,  51.  The 
case  of  Wildes  v.  Chajmian,  may  go 
too  far,  in  holding  that  a  covenant  in 
the  deed  of  transfer  will  give  rise  to 
a  trust  for  the  performance  of  the  co- 
venant ;  but  there  would  seem  to  be 
no  reason  to  doubt  the  soundness  of 
the  general  principle  on  which  it  is 
founded.  And  when  a  joint  creditor 
has  acquired  a  right  to  the  aid  of 
equity,  by  obtaining  judgment,  and 
issuing   an    execution,    he    may,    no 


doubt,  extend  the  remedy  to  property 
which  was  fraudulently  transferred  or 
assigned  by  the  partners,  because  a 
fraudulent  transfer  is  voidable,  if  not 
void,  and  may  be  treated  as  a  nullity 
by  the  injured  partners,  both  at  law 
and  in  equity. 

Although  the  equities  of  the  credi- 
tors are  founded  upon,  and  worked  out 
through  those  of  the  partners,  there 
is,  notwithstanding,  a  distinction  be- 
tween them,  which  requires  to  be  no- 
ticed, and  which  sometimes  leads  to  a 
material  difi"erence  of  result.  For, 
while  the  partners  have  a  lien  for 
the  balance  of  accounts,  as  between 
themselves,  independently  of  the 
amount  which  may  be  due  to  third 
persons,  the  equity  of  the  creditors 
is  based  upon  the  indebtedness  of 
the  firm,  and  has  nothing  to  do  with 
the  claims  which  its  members  may 
have  against  each  other.  Hence, 
while  an  execution  for  the  separate 
debt  of  a  partner,  who  is  in  debt  to 
the  firm,  may  be  restrained  by  equity 
at  the  suit  of  the  other  partners,  it 
seems  that  they  cannot  set  aside,  or 
control  a  levy  by  a  separate  creditor, 
on  the  share  of  a  partner,  who  is  not 
their  debtor,  merely  on  the  ground  of 
the  insolvency  of  the  firm,  and  that 
the  equity  which  arises  under  these 
circumstances,  is  one  which  can  only 
be  administered  at  the  instance  of  the 
joint  creditors ;  Breivster  v.  Harnett, 
4  Conn.  541 ;  Barher  v.  The  Bank, 
9  Id.  407 ;  Shedd  v.  Wilson,  1  Wil- 
liams, 478 ;  Douglas  v.  Winslow,  20 
Maine,  89 ;  the  reason  given  being, 
that  the  property  will  be  as  safe  in 
the  hands  of  the  purchaser  as  of  the 
partners.  This  objection  might,  how- 
ever, no  doubt,  be  obviated  by  making 
the  joint  creditors  parties  to  the  bill, 


336 


EQUITABLE     ASSETS. 


and  requiring  the  purchaser  to  sur- 
render the  property  to  them,  in  pay- 
ment of  their  demands  against  the 
partnership,  for  nothing  can  be  plainer 
than  the  equity  of  a  partner  to  have 
the  assets  of  the  partnership  appro- 
priated, in  the  first  instance,  to  the 
payment  of  its  debts,  in  discharge  of 
a  liability,  which  ought  not  to  fall 
on  him  personally,  unless  those  assets 
are  insufficient. 

It  is  thoroughly  well  settled,  that 
while  a  sale  under  an  execution  for 
the  separate  debt  of  a  partner,  will 
only  pass  his  interest  in  the  property, 
subject  to  the  lien  of  his  co-partners, 
and  their  equitable  right  to  require 
that  all  the  property  of  the  partner- 
ship shall  be  applied,  in  the  first 
instance,  to  the  payment  of  its  debts; 
Christian  v.  EUii^,  1  Grattan,  396; 
Renton  v.  Chaplain,  1  Stockton, 
Ch.  62 ;  In  the  matter  of  Smith,  16 
Johnson,  102  ;  ^^icoU  v.  Mumford,  4 
Johnson,  Ch.  523;  Holmes  v.  Mentze, 
4  A.  &  E.  127 ;  Garrett  v.  Veale,  5 
Q.  B.  408  ;  Johnson  v.  Evans,  7  M.  & 
G-.  240 ;  1  American  Leading  Cases, 
473, 4th  ed. ;  an  execution  issued  for  a 
joint  debt,  will  bind  both  the  legal 
and  equitable  interest  of  all  the  part- 
ners, and,  consequently,  confer  all  the 
right  and  title  of  the  firm  on  the  pur- 
chaser, free  from  all  claims,  either  of 
the  partnership,  or  of  the  individual 
partners.  Hence,  when  a  levy  for  a 
separate  debt  is  followed,  before  a  sale, 
by  an  execution  for  the  debt  of  the 
firm,  an  apparent  conflict  arises  be- 
tween two  legal  mandates,  one  of 
which  binds  the  whole  right  and 
title  of  all  the  partners  against  whom 
it  is  issued,  while  the  other  has  a 
prior  lien  or  hold  on  the  separate 
share  or  interest  of  one.     The  proper 


course,   under   these    circumstances, 
undoubtedly  is,   to    sell    under    each 
writ  separately,  and  without  regard  to 
the  existence  of  the  other ;  when  the 
purchaser  under  the  first  will  become 
a  tenant  in  common  with  the  other 
partners,  at  law,  and  be  subject  to  a 
lien  for  the  partnership  debts  and  to  an 
account    in  equity ;    while  those  who 
buy  under  the   second,  will  acquire 
the  equities  of  the  firm,  as  well  as, 
and  in  addition  to,  the  separate  shares 
or  interests  of  the  partners,  with  the 
exception  of  the  share  of  the  partner 
against  whom    the   first  writ  issued. 
The  extent  and  value  of  the  interests 
thus    acquired,    may  obviously  vary 
with  the  circumstances  of  each  case 
in  which  the  question  arises ;  but  it 
would  seem  plain,  that  the  right  of 
the  purchaser  under  the  writ  of  the 
separate  creditor,  must  extend  as  far 
as  that  of  the  partner  for  whose  debt 
it   issued,  and  cannot   be   a   nullity 
unless  the  firm    is   insolvent,  or  the 
relation  between  its  members  is  such 
that  the  whole  of  the  assets  would 
be    appropriated    by   equity  to    the 
other  partners ;    i?f'f'(?   v.    Slipppard- 
son,  2  Vermont,  126.     For  although 
the  interest  of  the  separate  creditor 
is  the  interest  of  the  partner  in  the 
state    and    condition    in    which    the 
partner  has   it,  and  is,  consequently, 
worth    nothing,   unless    the    partner- 
ship assets  are  sufl&cient  for  the  pay- 
ment of  its  debts ;    Taylor  v.  Fields, 
4  Vesey,  396 ;  The  Bank  v.  Wilkins,  9 
G  rcenleaf,  28 ;  yet,  for  the  same  reason, 
it  must  necessarily  have  a  real  value, 
when  the  firm  is  solvent  and  the  part- 
ner is  not  indebted  to  the  firm ;  Snod- 
(jrass's  Appeal,   1    Harris,  471,  475. 
The  sheriff  should,  therefore,  as  al- 
ready stated,  unless  there  is  something 


SILK     V.     PRIME. 


more  to  the  contrary  than  the  fact  that 
a  levy  for  a  separate  debt  has  been  fol- 
lowed by  a  joint  execution,  proceed 
separately  to  a  sale  under  both  writs, 
in  the  order  of  time  in  which  he  re- 
ceived them,  and  leave  the  rights  of 
the    partners   to   be    decided    subse- 
quently  by   equity.      But   although 
this  course  is  consistent  with  the  legal 
rights  of  the  purchaser  under  the  sepa- 
rate  writ,  and  even  with  principle, 
Moody  y.  Payne,  2  Johnson,  Ch.  548, 
and  would  seem  to  be  that  taken  in 
England,  it  is  attended  with  some  in- 
conveniences in  practice,  and  among 
others,  with  that  of  making  the  extent 
of  the  interest  exposed  for  sale,  depend 
on  the  solvency  of  the  partnership,  and 
the  state  of  the  accounts  between  the 
partners,  in   manifest   derogation    of 
the  certainty  which,  as  Lord  Eldon 
observed  in  Waters  v.  Taylor,  2  Vesey 
&  Beames,  301,  should  characterize 
every  sale,  especially  when  made  by 
the  law,  or  by  virtue  of  legal  process. 
The  proper  remedy  or  preventive  un- 
der these  circumstances,  lies  in  a  levy 
by  the  joint  creditors,  either  before  or 
after  the  sale,  followed  by  an  appeal 
for  aid  to  equity,  which  will  give  the 
complainants  the  full  benefit  of  the 
equity  of  the  partners,  either  by  en- 
joining the  sale,  under  the  separate 
execution,  or  by  compelling  the  pur- 
chaser to  submit  to  the  result  of  an 
account  between  the  partners,  and  ap- 
plying the  property  to  the  payment  of 
the  partnership  debts,  if  necessary  for 
their  liquidation ;  Witter  v.  Richards, 
10    Conn.     37;    Washhurn    v.    The 
Bank  of  Bellows  Falls,  19  Vermont, 
278 ;  Shedd  v.  Wihon,  1  Williams, 
278.     But   as   such  a  bill  must  be 
founded  on  an  allegation  of  the  in- 
solvency of  the  partnership,  and  can- 
VOL.  II. — 22 


not  reach  a  final  decision  until  that 
allegation  has  been  substantiated  by 
proof,  it  may  necessarily  lead  to  a 
long  and  involved  litigation,  and  prove 
of  little  benefit  in  fact,  however  per- 
fect in  theory.  A  difi"erent  view  has 
accordingly  been  taken  in  many  of  the 
states  of  the  Union,  and  a  levy  for  a 
debt  due  by  the  partnership,  held  to 
relate  back  to  the  equity  of  the  part- 
ners, and  thus  obtain  a  priority  over 
anterior  executions  for  the  separate 
debts  of  the  partners.  A  sale  made 
under  these  circumstances,  by  virtue 
of  the  joint  writ,  consequently  con- 
fers an  absolute  title  on  the  purchaser, 
and  the  proceeds  will  be  applied,  in 
the  first  instance,  to  the  payment  of 
the  joint  debts,  to  the  exclusion  of 
the  separate  creditors,  unless  there  is 
more  than  enough  to  satisfy  the 
others;  Pierce  v.  Jackson,  6  Mass. 
242;  Morrison  v.  Blodgett,  8  New 
Hampshire,  250;  Coover's  Appeal,  5 
Casey,  9 ;  Jarvis  v.  Brooks,  3  Foster, 
1SQ,UQ',  Ben  Sony,  ^^a,  4  Foster,  402 ; 
Tapipan  v.  Blaisdell,  5  New  Hamp- 
shire, 190;  Crane  Y.  French,  1  Wend. 
311;  Dunham  v.  Murdoch,  2  Id. 
553  ;  The  Commercial  Bank  v.  Wil- 
kins,  9  Grreenleaf,  28;  Douglass  v. 
Winslow,  20  Maine,  89;  Troicbridge 
V.  Cushman,  24  Pick.  310.  The 
same  view  was  taken,  under  some- 
what difi"erent  circumstances,  in  The 
Lancaster  Bank  v.  Miley,  1  Har- 
ris, 544,  and  a  mortgage  of  the  real 
estate  of  a  partnership  by  the  firm, 
held  entitled  to  the  whole  of  the  pro- 
ceeds of  the  land,  in  opposition  to  a 
prior  judgment  for  the  separate  debts 
of  one  of  the  partners ;  see  vol.  1,  p.  240, 
note  to  Lake  v.  Craddock.  In  some 
of  these  cases,  the  partnership  was 
proved  or  conceded  to  be  insolvent. 


338 


EQUITABLE     ASSETS. 


and  a  sufficient  equitable  ground,  con- 
sequently, laid  for  treating  the  levy 
for  the  separate  debt  as  a  nullity,  and 
awarding  the  whole  of  the  proceeds  to 
the  joint  creditor;  Price  v.  Jackson; 
The  Commercial  Banh  v.  Wilkins ; 
Douglass  v.  Winslow ;  but  there  are 
others  in  which  this  ingredient  was 
wholly  wanting;  Crane  v.  French; 
Diuihani  V.  Murdock ;  Morrison  v. 
BloJgett;  Troichridge  v.  Cushman ; 
Coover's  Appeal ;  and  which  seem  to 
have  been  based  on  the  principle,  that 
a  partner  has  no  right  or  title  to  any 
specific  portion  of  the  partnership  as- 
sets, and  only  a  right  to  what  may 
remain  after  the  debts  of  the  firm  and 
the  demands  of  his  partners  are  satis- 
fied; Gibson  V.  Stevens,  7  New  Hamp- 
shire, 352 ;  Lovejoy  v.  Bowers,  11  Id. 
404 ;  Deal  v.  Bogue,  8  Harris,  228 ; 
and  that  the  claims  of  the  separate 
creditors  cannot  rise  higher  in  this  re- 
spect than  those  of  the  partners;  Mor- 
rison V.  Blodgett.  But  although  this 
may  be  true  as  a  principle  of  equity, 
it  is  not  the  less  true  that  a  partner  is 
legally  entitled  to  the  custody  and 
possession  of  the  partnership  assets 
as  a  tenant  in  common,  as  a  means 
of  securing  and  protecting  his  equit- 
able or  resulting  interest  in  the  part- 
nership, and  that  neither  he  nor  those 
who  claim  under  him  as  creditors,  can 
be  deprived  of  this  right,  without  a 
sacrifice  of  justice  as  well  as  of  tech- 
nical principle.  Hence,  any  course  of 
decision,  which  treats  a  separate  exe- 
cution as  invalidated  or  superseded  by 
a  subsequent  levy  under  a  joint  writ, 
without  proof  of  the  insolvency  of  the 
firm,  is  unquestionably  a  departure  not 
only  from  the  course  of  the  common 
law  but  from  equity;  the  right  of  the 
separate  creditors  to  obtain  satisfaction 


out  of  the  share  of  their  debtor  in  the 
property  of   the  firm,  being    equally 
valid  under  both  systems,  with  that 
of  the  joint  creditors  to  the  joint  or 
collective  title  of  the  partners;   and 
the  priority  of  the  joint  creditors  a  mere 
right  to  a  remedy,  and  liable  to  be  de- 
feated altogether,  by  the  superior  dili- 
gence of  the  separate  creditors,  unless 
asserted  in  due  season ;  Russ  v.  Fay, 
3  Williams,  381;  Reedy.  Sheptpard- 
son,    2   Vermont,    120;    Hoskins    v. 
Everett,   4    Sneed,    531;    Doner   v. 
Stauffer,  1  Penn.  11.  198;  Snodgrass' 
Appeal,  1  Harris,  470.     It  has  ac- 
cordingly been  held,  in  a  number  of 
instances,  that  the  legal  right  of  the 
separate  creditors  to  proceed  against 
the  joint  assets  is  indubitable,  and  will 
not   be   restrained   by  equity  unless 
some  specific  cause  is  shown  why  it 
should  not  be  exercised ;   Cammack 
V.  Johnson,  1  Green,  Ch.  163 ;  Moody 
V.  Payne,  2  Johnson,  Ch.  548,  even 
when  the  partnership  is  insolvent,  and 
when  a  sale  of  the  share  or  interest  of 
the  partner  must,    consequently,   be 
mere  form,  and  will  pass  no  beneficial 
interest ;  Russ  v.  Fay,  3  Williams,  391 . 
The   better  opinion  would,  however, 
seem  to  be,  that  insolvency  constitutes 
a  sufficient  ground  for  an  injunction  in 
favor  of  the  partners,  or  of  joint  credi- 
tors whose  rights  have  been  perfected 
by  a  judgment  and  levy,  to  prevent  the 
sheriff"  from  proceeding  to  a  sale  on 
an  execution  issued  by  a  separate  cre- 
ditor, which  will  confer  no  real  right 
on  the  buyer,  and  consequently  ought 
not,  as  it  would  seem,  to  be  made  by 
the  law  ;  Witter  v.  Richards,  10  Conn. 
37  ;  1  Story's  Equity,  678  ;  JSkipp  v. 
Jfarivood,  2  Swanston,  506 ;  1  Vesey, 
239;  Washburn  X.  The  Bank  of  Bel- 
lows  Falls,  19  Vermont,  298 ;  Shedd 


SILK     V.      PRIME. 


339 


V.  Wilson,  1  Williams,  278.  But  the 
American  cases  generally,  as  we  have 
seen,  cut  the  knot  as  too  tedious  to 
unloose,  and  postpone  the  separate 
creditors  to  the  joint,  whenever  exe- 
cutions issued  by  both  come  in  conflict, 
without  other  proof  of  the  insolvency 
of  the  firm,  or  that  there  will  be  no 
surplus  left  for  the  separate  creditor 
on  a  settlement  of  the  partnership  ac- 
counts, than  the  existence  of  the  exe- 
cutions themselves,  which  may,  per- 
haps, be  regarded  as  'prima  facie  evi- 
dence of  the  inadcfjuacy  of  the  part- 
nership assets,  to  satisfy  all  the  de- 
mands against  them ;  TiUingliaM  v. 
Champlin,  4  llhode  Island,  174, 190. 
The  law  on  this  point,  and  the 
respective  rights  of  the  joint  and  sev- 
eral partners,  were  summed  up  with 
great  precision  and  clearness,  in  Bard- 
icell  V.  Perrij,  19  Vermont,  290,  302, 
in  the  following  language :  "  The  re- 
sult of  all  the  decisions  in  this  state 
upon  this  subject  now  is:  1.  That,  at 
law,  both  separate  and  joint  creditors 
may  attach  either  separate  or  joint 
property,  and  sell  it  upon  execution 
in  satisfaction  of  their  judgments, 
without  regard  to  the  equities  of  their 
debtors.  2.  That  in  equity,  by  the 
very  law  of  partnership,  the  partner- 
ship effects  are  pledged  to  each  sepa- 
rate partner,  until  he  is  released  from 
all  his  partnership  obligations;  but 
that  this  lien  is  solely  under  the  con- 
trol of  the  partners ;  and  it  would  fol- 
low, doubtless,  that  if  the  partnership 
be  dissolved  and  the  effects  assigned 
to  one  partner,  this  pledge  or  lien  is 
gone,  as  was  held  in  Ex  parte  Riiffui, 
6  Vesey,  119;  but  that,  while  the 
partnership  continues,  this  equitable 
lieu,  existing  for  the  benefit  and  secu- 
rity of  the  separate  partners,  may  be 


reached  in  a  court  of  equity  by  the 
creditors,  as  the  only  mode  of  fully 
carrying  into  effect  the  stipulations  of 
the  parties  at  the  time  of  forming  the 
association.  3.  That  a  partnership 
contract  imposes  precisely  the  same 
obligation  upon  each  separate  partner, 
that  a  sole  and  separate  contract  does, 
and  that  it  is  not  true,  that,  in  joint 
contracts  the  creditor  looks  to  the 
credit  of  the  joint  estate,  and  the 
separate  creditor  to  that  of  the  separate 
estate;  and  that  there  is  no  express  or 
implied  contract  resulting  from  the 
law  of  partnership,  that  the  separate 
estate  shall  go  to  pay  separate  debts 
exclusively ;  but  that,  as  the  partner- 
ship creditors  in  equity,  have  a  prior 
lien  on  the  partnership  fund,  chancery 
will  compel  them  to  exhaust  that  re- 
medy before  resorting  to  the  separate 
estate;  but  that  beyond  this,  both  sets 
of  creditors  stand  precisely  equal,  both 
at  law  and  in  equity." 

It  has  been  held,  and  would  seem 
to  be  a  just  deduction  from  the 
general  principle,  that  the  equities 
of  the  creditors  depend  on,  and 
fall  with  the  equities  of  the  part- 
ners, (ante,  329,)  that  when  goods 
belonging  to  a  partnership  have  been 
purchased,  under  an  execution  issued 
for  the  separate  debt  of  one  of  two 
persons,  who  compose  the  firm,  the 
subsequent  acquisition  of  the  interest 
of  the  other  partner,  under  an  execu- 
tion against  him,  will  confer  an  abso- 
lute title  on  the  purchaser,  free  from 
the  equities  of  the  partners,  and  of 
the  joint  creditors  of  the  firm  ;  Doner 
V.  Stavffer,  1  Penna.  R.  198.  And  it 
necessarily  follows,  that  when  the 
sheriff  commits  the  mistake  of  pro- 
ceeding on  separate  execution,  against 
each  of  the  members  of  a   partner- 


340 


COXDITIONS     IN     EESTRAIXT     OF     MARRIAGE. 


ship,  for  debts  due  by  them  in  their 
individual  capacity,  as  if  they  had 
been  issued  against  the  whole  firm, 
and  sells  the  partnership  property 
under  both  the  writs  jointly,  instead 
of  selling  the  interest  of  each  part- 
ner separately,  the  purchaser  will 
stand  in  the  same  position  as  if  he 
held  under  a  bona  fide  sale  by  the 
firm ;  and  the  distribution  of  the  pro- 
ceeds of  the  sale  will  depend  on  the 
result  of  a  settlement  of  accounts  be- 
tween the  partners,  the  share  of  each 
creditor  being  in  proportion  to  the  in- 
terest of  the  partner  against  whom  he 
issued  the  execution ;  Kelli/'s  Ap- 
peal, 4  Harris,  59  ;  Cooper's  Appeal, 
2  Casey,  262  ;  even  if  the  result  be 
to  give  the  whole  fund  to  one,  to  the 
exclusion  of  the  other;  because,  when 
the  contest  lies  solely  between  sepa- 
rate creditors,  no  joint  debt  being  in 
question,  the  right  of  each  of  the 
claimants  will  be  measured  by  that  of 
his  own  peculiar  debtor,  irrespectively 


of  the  demands  against  the  firm. 
When,  however,  levies  made  under 
writs  issued  for  the  individual  debts 
of  each  of  the  partners,  are  followed 
by  an  execution  for  a  joint  debt,  be- 
fore the  goods  have  been  sold,  and 
while  they  are  still  in  the  hands  of  the 
sheriff,  the  latter  will  have  the  superi- 
ority belonging  to  the  equity  of  the  firm, 
which  entitles  each  partner  to  require 
that  the  partnership  assets  shall  be  ap- 
plied to  the  payment  of  the  demands 
against  the  partnership,  without  re- 
gard to  the  state  of  the  accounts  be- 
tween himself  and  his  co-partners. 
Hence,  under  these  circumstances,  a 
sale  under  the  separate  writs  will  con- 
fer no  title,  as  against  a  purchaser 
under  the  joint  execution  ;  and  if  a 
sale  take  place  by  agreement,  under 
all  the  writs  siiuultaneously,  the  whole 
of  the  proceeds  will  be  primarily  ap- 
plicable to  the  execution  issued  for 
the  debt  of  the  firm;  Cooler's  Ap- 
jyeal,  5  Casey,  9. 


CONDITIONS   IN   RESTRAINT   OF    MARRIAGE. 

[*105]  *SCOTT  V.  TYLER. 

EASTER  AND  TRINITY  TERM,  1787;  DEC.  20,  1788. 
REPORTED   2    BRO.    C.    C.    431  ;   2    DTCK.    712. 

Conditions  in  restraint  of  Marriage. — Public  Policy.] — Le(/ac>/  to  a 
dawjhtcr,  one  moieti/  ofwidcli  icas  to  he  paid  to  her  at  twenty-one,  if  then  un- 
married, and  the  other  moiety  at  twenty  five,  if  then  rinmarried  ;  hut  in  case 
she  married  hefore  twenty-one,  u-ith  the  comment  of  her  mother,  to  he  settled 
upon  her  as  mentioned  in  the  will  The  daughter  married  under  twenty- 
one,  without  the  consent  of  her  mother :— Held,  that  the  legacy  did  not  vest 


SCOTT     V.     TYLER.  841 


in  the  daughter  upon  the  marriage,  and  that  she  never  came  under  the  de- 
scription to  which  the  gift  of  the  legacy  was  attached. 

Richard  Kee,^  the  putative  father  of  the  plaintiff  Margaret  Christiana 
Scott,  by  his  will,  devised  as  follows  : — "  I  will  that  my  executors,  hereinafter 
named,  do,  with  all  convenient  speed  after  my  decease,  purchase  the  sum  of 
£5000  South  Sea  Annuities,  1751,  in  their  names,  upon  trust  that  they,  or  the 
survivors  or  survivor  of  them,  do  stand  possessed  thereof,  and  receive  the 
dividends  from  time  to  time  as  the  same  shall  grow  due,  and  thereout  pay  and 
apply  the  sum  of  £60  yearly,  and  every  year,  in  and  towards  the  maintenance 
and  education  of  my  grandson,  Richard  Dryer,  till  he  shall  arrive  at  the  age 
of  fifteen  years ;  and  if  my  said  grandson  should  then  choose  to  go  to  the 
university,  from  thenceforth  to  pay  and  apply  £120  per  annum  in  and  towards 
his  said  maintenance  and  education  at  the  university ;  but  if  my  said  grandson 
shall  not  go  to  the  university,  I  will  that,  out  of  the  sum  of  £5000  and  the 
dividends  and  savings  arising  thereon  then  made,  a  sum  not  exceeding  £400 
be  applied  in  placing  out  my  said  grandson  to  any  trade,  profession,  or  employ- 
*ment  he  may,  with  the  approbation  of  my  executors,  choose.  And  rj^-inp-i 
my  will  and  meaning  is,  that  the  surplus  dividends,  if  any,  over  and 
besides  sucji  allowances  as  aforesaid,  from  time  to  time  be  invested  in  the  like 
South  Sea  Annuities,  and  that  the  said  capital  sum,  with  such  surplus  divi- 
dends, he  trans/erred  to  my  said  grandson  at  his  age  of  twenty-one  years,  if 
he  shall  be  living,  but  if  he  shall  die  be/ore  that  age,  I  give  the  said  annuities 
between  Mrs.  Elizabeth  Tyler,  who  now  lives  with  me,  and  my  god-daughter, 
Margaret  Christiana  Tyler,  equally  to  he  divided  between  them,  share  and 
share  alike,  but  the  share  of  my  god-daughter  not  to  be  transferred  to  her  till 
twenty-one.  And  if  she  shall  die  before  her  arrival  at  that  age,  I  give  her 
share  to  the  said  Elizabeth  Tyler,  for  her  own  use  and  benefit ;  also,  I  will 
that  my  executors  hereinafter  named,  do,  with  all  convenient  speed  after  my 
decease,  purchase  the  sum  of  £10,000  South  Sea  Annuities,  1751,  in  their 
names,  upon  the  trusts  after-mentioned,  that  is  to  say,  upon  trust  that  they 
and  the  survivor  and  survivors  of  them  do  stand  possessed  thereof,  and  out  of 
the  dividends  pay  or  permit  the  said  Elizabeth  Tyler  to  take  or  receive  yearly, 
and  every  year,  as  the  same  shall  become  payable,  the  sum  of  £100  for  the  main- 
tenance and  education  of  my  said  god-daughter,  Margaret  Christiana  Tyler, 
until  her  age  of  twenty-one  years,  which  will  be  on  the  18th  day  of  June, 
1785,  and  add  the  surplus  of  such  dividends  from  time  to  time  to  the  said 
capital  stock  ;  and  at  her  said  age  of  twenty-one  years,  I  will  that  one  moiety 
of  the  said  capitcd  stock  of  £10,000,  and  the  savings  thereof,  he  paid  and 
transferred  to  my  said  god-daughter,  in  case  she  shall  be  then  unmarried ; 
and  that,  at  her  age  of  twenty-five  years,  if  she  shall  he  then  unmarried,  I 
will  that  the  other  moiety  of  the  said  £10,000  he  then  transferred  to  her  for  her 
own  use  and  benefit;  but  in  case  my  said  god-danghtcr  shall  marry  before 

^The  statement  of  tbc  case  and  arguments  are  taken  from  2  Bro.  C.  C.  431. 


342  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 


her  said  age  of  twenty-one  years^  with  the  consent  of  her  said  mother,  Eliza- 
beth Tyler,  I  will  that  one  moiety  of  the  said  £'10,000,  with  the  savings  made, 
he  settled  on  my  said  god-daughter,  for  her  separate  use,  and  her  isstic,  in  such 
P^,  ^„-,  manner  as  her  said  mother,  *Elizabeth  Tyler,  shall  think  proper,  and 
"-  the  other  moiety  thereof  with  the  surplus  dividends,  disposed  of,  as 

she,  my  said  god-daughter,  shall  think  fit ;  but  in  case  my  said  god-daughter 
shall  depart  this  life  before  her  arrival  at  the  age  of  twenty-five  years,  unmar- 
ried, then  and  in  such  case,  I  give  the  said  £10,000  to  her  said  mother  Eliza- 
beth Tyler,  for  her  oion  use  and  benefit.  I  give,  devise,  and  bequeath  to  my 
executors,  and  to  their  heirs,  all  my  freehold  messuages  or  tenements,  with 
the  appurtenances,  in  Denmark-court  in  the  Strand,  being  Nos.  2,  3,  4,  and 
5,  in  trust  that  they  and  the  survivors  of  them,  and  the  heirs  and  assigns  of 
such  survivor,  do  from  time  to  time  receive  the  rents  and  profits  thereof,  and 
lay  out  the  same  in  government  securities,  to  the  use  of  my  aforesaid  god- 
daughter, Margaret  Christiana  Tyler,  till  her  age  of  twenty-one  years ;  and 
from  and  after  her  attaining  that  age,  I  give  the  said  messuages,  and  the  rents, 
issues,  and  profits  received  by  my  said  executors  in  the  mean  time,  to  my  said 
god-daughter,  her  heirs,  executors,  administrators,  and  assigns,  for  ever;  but 
if  my  said  god-daughter  shall  depart  this  life  before  she  shall  attain  the  age 
of  twenty-one  years,  I  give  and  devise  the  said  messuages,  or  tenements  and 
premises,  to  my  said  grandson,  Eichard  Dryer,  if  living,  his  heirs  and  assigns ; 
but  if  dead,  I  give  and  devise  the  same  to  the  said  Elizabeth  Tyler,  her  heirs 
and  assigns  for  ever.  I  give  to  my  executors  the  principal  sum,  with  interest, 
which  at  my  decease  may  be  due  to  me  on  the  security  of  the  River  Lee,  upon 
trust  that  they  do  receive  the  interest  thereof  till  my  said  god- daughter, 
Margaret  Christiana  Tyler,  shall  attain  twenty-one,  for  her  separate  use,  not- 
withstanding her  coverture,  and  from  and  after  her  attaining  that  age,  to 
transfer  or  assign  the  said  securities,  with  the  money  due  thereon,  to  my  said 
god-daughter,  for  her  own  use  and  benefit ;  but  if  my  said  god-daughter  shall 
die  before  she  shall  attain  the  age  of  twenty-one  years,  I  give  the  principal 
money  and  interest  for  or  on  account  of  the  Eiver  Lee,  to  the  aforesaid  Eliza- 
beth Tyler,  for  her  own  use  and  benefit."  He  then  gave  several  other  lega- 
P^.j.^.,  cics,  and  appointed  as  follows  : — "All  ^my  freehold  estate  in  White- 
^  ^  chapel,  in  the  county  of  Middlesex,  and  all  bond  debts,  and  other 
debts,  owing  to  me  by  any  person  or  persons  whomsoever,  (particularly  a  sum 
of  £2300  and  interest,  due  to  me  from  Maurice  Dryer  and  his  wife,  on  mort- 
gage of  their  estate,)  and  effects  as  well  real  as  personal,  whatsoever  and  where- 
soever, and  of  what  nature  or  kind  soever,  I  give  and  bequeath  the  same  to 
the  aforesaid  Elizabeth  Tyler,  her  heirs,  executors,  administrators  and  assigns, 
for  ever,  for  her  great  care  in  looking  after  me  in  my  several  illnesses,  and 
whom  I  look  upon  as  my  wife  in  every  respect,  which  I  would  have  made  her, 
had  it  not  been  for  a  foolish  promise  I  made  to  my  late  wife  in  her  lifetime ; 
and  constitute  and  appoint  the  aforesaid  Elizabeth  Tyler,  George  Shakspear, 
the  elder,  Charles  Mayheio,  and  Philip  Nind,  executors  and  trustees  of  this 
my  last  will  and  testament." 


SCOTT     V.     TYLER.  343 


In  1774,  James  Cockburn  left  to  the  plaintiff  Margaret  Christiana  Tyler  a 
legacy  of  £100,  and  made  the  defendant  Tyler  executrix,  and  Richard  Kee 
died  in  September,  1776,  without  revoking  his  will.  The  plaintiff  Samuel 
Scott  about  the  latter  end  of  1782  paid  his  addresses  to  the  other  plaintiff, 
Margaret  Christiana,  and  by  her  consent  made  proposals  to  the  defendant 
Elizabeth  Tyler  relative  to  a  marriage  with  her  daughter,  offering  to  settle  her 
whole  fortune,  together  with  a  reasonable  part  of  his  own,  upon  the  marriage, 
which  proposal  was  rejected  by  the  defendant;  but  on  the  17th  of  May,  1783, 
he  married  the  other  plaintiff,  Margaret  Christiana,  iciihout  her  mother's  con- 
sent. 

The  River  Lee  Navigation  bonds  were,  with  other  securities  for  money,  de- 
posited by  the  testator  with  Messrs.  Hankey,  the  bankers,  locked  up  in  a  box 
for  safe  custody ;  and  after  his  death  the  defendant  Tyler  also  deposited  secu- 
rities with  them,  locked  up  in  a  box,  for  the  like  purpose ;  and  having  in  the 
year  1779  engaged  in  large  concerns  in  shipping,  &c.,  the  banking  house  was 
in  advance  for  her  in  very  large  sums  of  money ;  and  about  the  year  1779  or 
1780,  the  defendant  Elizabeth  Tyler  caused  the  box  to  be  opened,  and  several 
bonds  and  securities,  among  *which  were  ten  bonds  and  securities  of  r^-iAQ-i 
the  River  Lee  Company,  Nos.  171  to  180,  inclusive,  for  £100  each,  "-  -• 
to  be  taken  out,  and  deposited  the  same  with  the  partnership,  as  a  general 
security  for  moneys  advanced  on  her  account. 

In  1786,  Elizabeth  Tyler  became  a  bankrupt. 

The  original  and  supplemental  bill  prayed  that  the  right  of  Margaret  Chris- 
tiana to  the  £10,000  South  Sea  stock  might  be  declared,  and  the  same  settled 
on  the  marriage ;  an  account  of  the  rents,  and  of  the  houses  in  Denmark-court, 
and  payment  of  the  £100  legacy  given  by  Cockburn  ;  an  account  of  the  River 
Lee  bonds  against  the  Hankeys ;  and  that  the  same  might  be  deposited  with 
the  Master ;  and  that  they  might  pay  all  moneys  received  on  account  thereof 
to  the  plaintiffs. 

The  defendant  Elizabeth  Tyler  by  her  answer  denied  that  the  marriage  of 
the  plaintiff  was  by  her  consent,  and  insisted,  that,  for  want  of  performance 
of  that  condition,  the  plaintiff  Margaret  Christiana  had  forfeited  her  legacy  of 
£10,000  South  Sea  Annuities,  which  had  fallen  into  the  residuary  estate  of 
the  testator. 

With  respect  to  the  bonds,  the  Hankeys  by  their  answer  swear  they  believe 
the  same  to  be  the  property  of  Elizabeth  Tyler,  and  did  not  know  them  to  be 
the  property  of  the  testator,  and  to  be  specifically  devised  by  his  will,  and  hope 
they  shall  not  be  decreed  to  deliver  them  up  till  they  are  paid  their  demands 
on  Elizabeth  Tyler. 

The  case  was  argued  on  three  days  in  Easter,  and  three  in  Trinity  Term, 
1787. 

Mr.  Mansfield,  for  the  plaintiffs. — Two  points  arise  in  this  case  :  first,  in 
respect  to  the  £10,000  South  Sea  Annuities ;  second,  in  respect  to  the  deposit 
of  the  River  Lee  bonds.     First,  we  say,  that  Margaret  Christiana  Tyler,  hav- 


344  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 


ing  married  under  her  age  of  twenty-one,  is  entitled  to  tlie  legacy  of  £10,000. 
If  she  married  under  that  age,  a  moiety  was  to  be  settled  on  the  marriage,  the 
other  to  be  paid  as  she  should  direct.  She  having  married,  is  therefore 
become  entitled  to  it.  But  it  is  objected,  on  the  other  side,  that  she  is  not 
entitled,  ^because  her  marriage  with  the  other  plaintiff  was  not  with 
[*110]  ^^g  consent  of  her  mother,  whose  consent  was  made  necessary  by  the 
testator's  will.  The  doctrine  of  our  law  is,  that  wherever  there  is  a  personal 
leo-acy  or  a  portion  payable  out  of  money  only,  and  not  out  of  land,  and  a  con- 
dition is  annexed  of  not  marrying  without  consent,  the  clause  restraining  mar- 
riage is  construed  to  be  in  terrorem  only,  and  void ;  and  it  is  immaterial  whe- 
ther the  condition  be  precedent  or  subsequent.  In  this  point  our  law  follows 
the  civil  law,  as  far  as  personal  property  is  concerned.  If  this  were  a  new 
case,  and  to  be  argued  on  principle,  it  would  perhaps  be  a  matter  of  more 
difficulty ;  but  the  law  seems  to  be  so  fully  settled,  that  it  scarcely  seems  to 
be  necessary  to  do  more  than  mention  a  few  of  the  leading  cases :  Hervey  v. 
Aston,  Ca.  t.  Talb.  212  ;  1  Atk.  3G1,  and  Comyn's  Rep.  726 ;  Reynuh  v.  Mar- 
tin, 3  Atk.  330  3  Elton  v.  Elton,  1  Wils.  159.  According  to  which  cases,  the 
plaintiff  would  be  entitled  to  this  legacy;  and  the  condition  requiring  Mrs. 
Tyler's  consent  would  be  pro  tauto  void,  even  if  it  be  taken  as  a  condition 
precedent.  But,  in  truth,  this  is  a  condition  subsequent;  the  plaintiff  was 
entitled  absolutely  to  this  legacy  although  she  did  not  marry.  Marriage  is 
not  necessary  to  give  her  the  legacy :  the  condition  would  therefore  operate  to 
divest  a  gift  which  would  otherwise  have  effect.  The  testator  meant  her  to 
have  the  legacy  in  all  events,  at  a  certain  period;  and  the  clause  respecting 
her  marriage  with  Mrs.  Tyler's  consent  was  only  meant  to  accelerate  the  pay- 
ment. 

Mr.  Scott,^  on  the  same  side. — Independently  of  the  clause  containing  the 
condition  of  marrying  with  consent,  it  may  be  argued,  that  the  testator  in- 
tended the  legatee  to  have  the  £10,000  in  every  event  except  one ;  namely, 
that  of  her  dying  unmarried  under  the  age  of  twenty-five  years,  which,  by  her 
marriage,  is  now  become  impossible.  That  is  the  only  event  in  which  he  has 
given  the  legacy  over ;  for  it  is  settled  that  the  bequest  of  a  residue  is  never 
considered  as  having  the  effect  of  a  bequest  over,  of  a  particular  legacy.  But, 
on  the  authorities,  it  is  clear,  that  *this  being  a  personal  legacy,  the 
[  *111]  condition,  as  far  as  it  requires  the  consent  of  Mrs.  Tyler,  is  in  terrorem 
only,  and  therefore  void  in  law ;  and  that,  in  fact,  the  condition,  as  far  as  it 
is  legal,  is  complied  with  by  the  marriage.  The  case  of  Long  v.  Dennk,  4 
Burr.  2052  shows  how  averse  the  Courts  always  are  from  conditions  in  restraint 
of  niarria"-e,  by  requiring  consent  even  in  the  case  where  the  legacy  issues  out 
of  land.  However,  in  the  case  of  personalty,  the  rule  is  fully  established, 
from  Ilcrveij  v.  Ai^ton,  that  in. this  case  our  Courts  follow  the  rules  of  the  civil 
law,  and  that  by  that  law  two  strict  maxims  are  laid  down.  1st,  That  mar- 
riage ought  to  be  free.     2nd,  That  a  testament  shall  not  be  inofficious.     With 


1  Afterwards  Earl  of  EUlon. 


SCOTT     V.     TYLER.  345 


reference  to  those  two  maxims,  they  held  a  condition  requiring  consent  to 
marriage  to  be  void ;  whereby,  1st,  They  encouraged  matrimony  upon  sound 
principles  of  policy.  2nd,  They  prevented  heirs  from  being  defeated  of  their 
inheritance,  by  conditions  requiring  them  to  obtain  consent  from  particular 
persons,  which  was  a  mode  invented  to  evade  the  laws  respecting  inofficious 
testaments,  by  requiring  a  consent  which  the  testator  knew  to  be  impossible 
to  obtain.  On  this  subject  the  civil  law  was  very  strict,  and  it  was  immaterial 
whether  the  condition  was  precedent  or  subsequent,  or  whether  there  was  any 
gift  over  or  not ;  nor  did  it  signify  what  relation  the  legatee  bore  to  the  testa- 
tor. The  condition  was  absolutely  void :  Godolph.  Orphans'  Leg.  b.  1,  c.  15. 
This  shows  that  the  only  effect  of  the  condition  was,  that  it  made  it  necessary 
for  the  party  to  marry,  and  the  other  part  of  the  condition,  requiring  consent, 
is  unlawful  and  void.  Marriage  alone,  therefore,  is  a  compliance  with  the 
condition.  Godolph.,  b.  3,  c.  17.  And  the  subject  is  more  fully  considered 
in  Swinburne,  b.  4,  c.  12,  p.  266.  That  these  rules  have  been  adopted  by 
our  law,  is  clear  from  many  cases,  particularly  Wheeler  v.  Bhir/ham,  1  Wils. 
135 ;  JElton  v.  Elto7i,  1  Wils.  159 ;  Piffgot  v.  Morris,  Sel.  Ch.  Ca.  26 ;  and  in 
2  Eq.  Ca.  Ab.  214.  This  last  case  may  seem  at  first  to  be  against  us,  but  it 
was  decided  on  the  double  times  of  payment.  Then  Undenuood  v.  Morris,  2 
Atk.  184,  adopts  the  rule  :  SempTiill  v.  Bayly,  Prec.  Ch.  *562.  Gar- 
hut  V.  Hilton,  1  Atk.  381,  is  a  negative  authority  for  us  on  this  point,  L  ^-1 
and  shows  that,  if  a  marriage  had  been  had,  the  condition  would  have  been 
void,  as  far  as  it  required  consent :  Bellasis  v.  Ermine,  1  Ch.  Ca.  22.  Another 
head  of  cases  is,  where  there  has  been  a  provision  made  on  the  alternative 
of  not  marrying  with  consent,  and  there  the  Court  has  not  relieved  against 
the  condition ;  but  this  is  a  distinct  ground,  and  does  not  apply  to  this  case. 
GiUet  V.  ^yray,  1  P.  Wms.  284,  is  a  case  of  this  nature.  Hemmings  v. 
Munkley,  1  Bro.  C.  C.  304,  does  certainly  in  some  measure  contradict  Under- 
tvood  V.  Morris;  but  whether  that  case  be  wrong  or  right,  is  at  present  imma- 
terial, as  here  is  no  devise  over.  [Lord  Chancellor  Thurlow. — The  civil  law 
seems  to  have  determined  it  to  be  illegal  to  give  one  person  a  general  control 
over  another  in  respect  to  marriage :  but  I  always  apprehend  this  to  be  re- 
strained^ to  a  general  control,  and  not  to  the  preventing  a  rash  or  precipitate 
match.  Here  it  is  confined  to  marrying  with  consent  under  twenty-one  years 
of  age ;  and  the  question  is,  whether  there  is  anything  in  sound  reason  to 
make  a  restraint  to  this  extent  illegal.  Confining  it  to  years  of  immaturity  is 
a  very  difi"erent  thing  from  a  general  restraint  of  marriage.]  The  second  ques- 
tion in  this  case  is,  in  respect  to  the  deposit  of  the  bonds  by  Mrs.  Tyler  in  the 
hands  of  Messrs.  Hankey  the  bankers,  whether  they  can  retain  them  against 
the  specific  legatee,  for  the  private  debt  of  the  executrix.  No  assignment 
was  ever  made  of  them ;  it  was  merely  a  deposit  of  part  of  the  testator's  pro- 
perty, and  made  for  a  purpose  that  had  no  reference  whatever  to  the  purposes 
of  the  will.     Mead  v.  Lord  Orrery,  3  Atk.  235,  lays  down  the  rule,  to  be 


1  See  Stackpole  v.  Beaumont,  3  Ves.  89. 


34G  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 

pure,  pretty  broadly,  that  executors  may  assign  or  pledge  the  testator's  estate 
for  any  purpose  whatsoever :  but  that  case  has  been  much  shaken  since,  by 
Bonnri/  v.  Ridgard,^  before  the  Master  of  the  Rolls,  December  3rd,  1784, 
■where  his  Honor  was  of  opinion,  that  the  rule  was  carried  too  far  in  Mead  v. 
Lord  Orrery;  for,  though  it  is  clear  that  an  executor  may  dispose  of  assets, 
and  anybody  purchasing  of  him  is  not  bound  to  see  to  the  application 
L  '  J  *of  the  money,  yet  this  shall  never  protect  anybody  who  purchases  from 
an  executor  with  a  full  knowledge  that  the  money  was  to  be  misapplied ;  and 
that  mortgaging  a  leasehold  property  of  the  testator  did  not  seem  to  be  the 
natural  way  of  dealing  witli  assets,  and  was  in  itself  a  very  suspicious  circum- 
stance. Nugent  v.  Gifford,  1  Atk.  463,  is  also  a  strong  ease  for  the  defend- 
ants, but  is  inconsistent  with  that  oi Bonneij  v.  Ridgnrd.  Now,  this  is  a  case 
where  the  defendants  must  know  that  the  purpose  for  which  these  bonds  were 
pledged,  could  be  no  part  of  the  purposes  to  which  they  were  applicable  by 
the  will,  for  it  was  a  deposit  made  in  the  course  of  a  private  transaction  be- 
tween them  and  Mrs.  Tyler. 

Mr.  Graham,  on  the  same  side. — It  seems  a  very  fair  inference,  from  the 
words  of  the  will,  that  the  plaintiff,  Mrs.  Scott,  became  entitled  to  her  legacy 
at  twenty-one,  in  all  events ;  though  in  some  cases  not  to  be  paid  then,  yet  it 
vested.  The  clause  is  oddly  worded,  and  there  are  several  events  which  are 
not  provided  for  expressly,  such  as  her  marrying  with  consent  after  twenty- 
one.  It  is  given  over  only  in  one  particular  event,  that  of  her  dying  unmar- 
ried under  twenty-five ;  which  seems  to  imply  that  her  interest  was  absolute 
in  all  other  events.  But,  on  the  point  of  the  illegality  of  these  conditions,  the 
cases  are  positive.  Bellasis  v.  Ermine  is  a  case  of  great  authority,  for  it  had 
the  assistance  of  the  judges.  So,  Fry  v.  Porter,  1  Ch.  Ca.  188.  The  dis- 
tinction is  between  a  legacy  issuing  out  of  land  and  a  mere  personalty :  for,  as 
to  real  property,  it  must  follow  the  rules  of  the  common  law  on  the  subject  of 
conditions :  Reynish  v.  Martin,^  Hervey  v.  Aston.  The  Digest  lays  down 
those  conditions  as  void,  in  the  most  unqualified  terras  possible:  Dig.  lib.  35, 
tit.  1 ;  Laws,  62,  63,  and  6t. 

Mr.  Alexander,  on  the  same  side. — There  are  two  questions  before  the  Court ; 
the  first  relates  to  the  sum  of  £10,000,  South  Sea  Annuities,  the  other  to  the 
bonds  deposited  with  the  Messrs.  Hankeys.  With  respect  to  the  first,  I  con- 
tend that  Mrs.  Scott  is  become  entitled  in  respect  of  her  marriage.  The  rule 
of  this  Court  is,  that  *wherever  a  personal  legacy  is  given  to  any  one? 
•-  J  upon  condition  of  marrying  with  the  consent  of  a  third  person,  and  no 
express  provision  is  made  in  the  case  of  tlie  legatee's  marrying  without  such 
consent,  the  part  of  the  condition  restraining  the  marriage  to  being  with  con- 
sent, is  held  to  be  in  terrorem  only,  and  the  legacy  vests  on  the  marriage;  and 
this  is  so,  whether  the  condition  be  precedent  or  subsequent;  whether  it  be  a 
portion  or  a  legacy;  whether  the  restraint  be  temporary  or  perpetual;  and 
notwithstanding  there  is  a  general  devise  of  the  residue.     But  they  will  objcctj 

J  4  Bro.  C.  C.  130  ;  1  Cox,  145.  2  3  Atk.  330. 


SCOTT     V.     TYLER.  347 


on  the  other  side,  first,  that  this  rule  does  not  apply  where  the  condition  is 
precedent.  The  doctrine  is  adopted  from  the  civil  law,  and  it  would  be  almost 
unnecessary  to  argue  that  this  distinction  does  not  apply :  had  not  Lord  Chief 
Baron  Comyns,  in  his  argument  in  Ilcrvei/  v.  Aston,^  taken  great  pains  to  prove 
that  there  was  a  distinction  in  the  civil  law  between  conditions  precedent  and 
subsequent,  I  admit  the  civil  law  had  such  a  distinction,  but  it  did  not  apply 
to  this  sort  of  condition.  The  rule  was,  that  where  the  condition  was  impos- 
sible, against  good  morals  or  positive  law,  there  was  no  distinction  whether  it 
was  precedent  or  subsequent :  the  legatee  took  the  legacy,  discharged  of  the 
condition.  The  Lord  Chief  Baron  himself  states  the  rule  so,  in  p.  788.  Now 
this  sort  of  condition  was  prohibited  by  the  Lex  Julia,  and  therefore  falls 
within  the  rule.  This  the  Lord  Chief  Baron  admits  in  p.  73G,  but  he  cites 
Dig.  35,  tit.  1,  1.  64,  which  relates  to  restraint  of  another  kind,  and  omits  to 
cite  Dig.  35,  tit.  1,  1.  72,  si  arbitratu  Titii  Seia  nupserit,  hfieres  mens  ei  fun- 
dum  dato,  etiam  sine  arbitrio  Titii,  earn  nubentum,  legatum  accipere  respon- 
dendum est;  eam  legis  sententiam  videri,  ne  quid  omnino  nuptiis  impedimen- 
tum  inferatur.  Then,  if  it  was  contrary  to  law,  it  is  the  same  as  if  it  had  not 
been  written,  and  no  distinction  whether  it  was  precedent  or  subsequent.  With 
respect  to  the  modern  practice  of  our  Ecclesiastical  Courts,  we  are  informed  it 
is  consonant  to  the  rule  of  the  Digest.  The  cases  in  our  law  are  principally 
BeUasis  v.  Ermine,  1  Ch.  Ca.  22;  SemphiU  v.  Bayly,  *Prec.  Ch.  r:!<i-|r-| 
5G2 ;  Palling  v.  Redely,  1  Wils.  21 ;  Eeyni&li  v.  Martin,  3  Atk.  330 ;    '"  -" 

which  last  was  a  condition  precedent.  The  cases  where  the  condition  is  sub- 
sequent, prove  the  same  thing.  Those  where  the  resolution  is  in  favor  of  the 
forfeiture,  proceed  on  different  circumstances.  Suttrm  v.  Jewhe,  2  Ch.  Rep. 
95;  Jetrvisr.  Duke,  1  Vern.  19,  are  on  the  devise  over;  Stratton  v.  Grymes, 
2  Vern.  357  ;  Aston  v.  Aston,  2  Vern.  452,  on  the  same  circumstances  ;  Gillet 
v.  Wray,  1  P.  Wms.  284 ;  Creagli  v.  Wilson,  2  Vern.  572,  on  the  alternative 
provision;  Pigot  v.  Morris,  Sel.  Ch.  Ca.  26;  Hervey  v.  Aston,  Comyns,  726, 
was  a  case  of  land;  Chauncey  v.  Grayclon,  2  Atk.  616,  there  was  a  devise 
over;  Hemmings  v.  Munl-ley,  1  Bro.  Ch.  Ca.  304,  which  seems  to  have  been 
a  hasty  determination,  but  there  is  a  devise  over;  from  all  which  cases  taken 
together,  it  seems  that  no  distinction  has  been  taken  on  this  subject  between 
conditions  precedent  and  subsequent.  The  next  objection  that  will  be  made, 
will  be,  that  though  this  rule  holds  good  of  a  portion,  it  does  not  extend  to  a 
legacy.  This  will  be  supported  by  an  argument  drawn  from  the  civil  law,  and 
which  is  stated  by  Lord  Chief  Baron  Comyns  in  his  argument,  fol,  735,  and 
a  conclusion  will  be  drawn,  that  it  applies  only  to  portions.  But  this  proceeds 
only  on  a  mistake  of  the  Lex  Julia,  the  policy  of  which  was  to  compel  persons 
to  marry,  by  all  the  means  that  could  be  devised.  It  is  not,  therefore,  probable 
that  such  a  law  should  be  confined  to  portions,  and  indeed  the  words  of  the 
law  equally  comprehend  legacies.  So  in  Reynish  v.  Martin,  which  was  the 
case  of  a  legacy,  not  of  a  portion,  for  the  party  was  entitled  to  a  large  provision 

1  Cora.  Rep.  T26. 


348  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 


besides.     The  third  objection  is,  that  though  the  rule  may  obtaiu  where  the 
restraint  is  perpetual,  it  is  otherwise  where  it  is  temporary,  and,  as  in  this  case, 
to  cease  at  twenty-one  or  twenty-five  years  of  age.     If  the  question  were  to 
turn  upon  the  policy  of  the  thing,  I  admit  this  might  be  a  very  wise  distinc- 
tion, but  it  appears  from  all  the  cases,  that  there  is  no  ground  to  argue  it  on 
r*i    n    policy-     T^e  objection  proceeds  on  the  supposition  that  the  *determi- 
^'^       -*    nation  turns  on  the  illegality  of  the  restraint;  in  the  civil  law,  it  is 
true  it  is  so,  but  this  Court  has  adopted  the  rule  of  civil  law  in  part  only ;  and 
as  a  rule  of  construction  of  the  testator's  intent,  that  the  condition  should  be 
in  terrorem  only;  and  the  question  with  us  is  only,  whether  the  condition  was 
meant  in  terrorem.     Upon  this  ground  it  is,  that  in  those  cases  where  there 
are  devises   over,  the   condition   has  had   its  effect;   but  if  the  condition 
was  considered  as  being  in  itself  illegal,  there  being  a  devise  over  could 
make  no  difference;  but  the  cases  in  our  law  say,  that  where  there  is  a  devise 
over,  the  testator  having  made  an  express  provision  in  the  event  of  the  condi- 
tion not  being  complied  with,  shows  sufl&ciently  that  he  did  not  mean  it  in 
terrorem  only ;  and  this  reconciles  these  cases  with  the  others,  which  would 
be  unintelligible  if  they  proceeded  on  the  illegality  of  the  restraint.     The  same 
observations  arise  upon  another  class  of  cases  ;  those  where  there  is  a  provision 
made  for  the  legatee  in  the  alternative ;  if  the  condition  were  illegal,  it  would 
be  equally  so  in  that  case  with  any  other.     In  the  Roman  law  it  was  imma- 
terial whether  there  was  a  devise  over  or  not ;  for  this  reason  it  is  that  in  our 
law  the  constant  language  is,  that  the  condition  is  in  terrorem  ;  but  there  is 
no  such  language  in  the  Roman  law,  in  ours  not  a  word  of  the  condition  being 
absolutely  illegal  and  void,  except  in  the  ease  of  Long  v.  Denuh,  where  the 
language  attributed  to  Lord  Mansfield  by  the  reporter,  is  so  extraordinary  as 
to  leave  room  to  doubt  the  accuracy  of  the  report  in  other  respects.     From 
hence  we  may  gather,  that  though  our  law  has  adopted  the  Roman  law  in  part, 
it  has  not  done  so  on  the  whole,  and  whatever  the  distinction  in  that  law  might 
be  between  temporary  and  perpetual  restraints,  our  law  has  not  followed  them ; 
no  such  distinction  is  to  be  found  in  any  of  the  eases.     If  it  be  possible  for  a 
man  to  impose  such  a  restraint  till  twenty-one,  he  has  not  done  it  here.  Where 
he  meant  to  give  the  property  over,  he  has  done  it.     In  the  bequest  to  his 
grandson,  he  has  devised  it  over.     So,  in  the  River  Lee  Securities,  there  is  a 
^,  ,H,-|    devise  over.     Consider  the  *policy  of  construing  it  so  here.     The  re- 
'-         -^    siduary  legatee  had  the  custody  of  the  infant;  it  was  her  consent,  if 
any,  that  was  to  be  had  to  the  marriage.     How  easy  it  would  be  to  her  to 
encourage  a  match  without  being  proved  to  have  consented  to  it ;  and  she 
would  herself  be  the  person  to  take  advantage  of  its  being  without  consent,  and 
obtain  the  forfeiture.     If  the  point,  therefore,  turned  on  any  ground  of  policy, 
there  is  strong  reason  why,  i»  this  case,  the  restraint  should  not  hold.     The 
last  point  they  will  contend  is,  that  the  devise  of  the  residue  is  equal  to  a  de- 
vise over;  and  this  will  be  founded  on  the  case  of  Amos  v.  Ilorncr,  1  Eq.  Ca. 
Ab.  112 ;  but  there  is  no  principle  of  good  sense  upon  which  it  should  be  so. 


SCOTT     V.     TYLEK.  849 


And  the  authority  of  Amos  v.  Horner  has  been  expressly  denied  in  Hervey  v. 
Asto7i,  Garret  v.  Pritfy,  and  Wheeler  v.  Bingham,,  1  Wils.  135, 

Mr.  Ilardinge,  for  the  defendant  Elizabeth  Tyler  and  her  assignees. — (1.) 
One  of  the  four  alternative  contingencies  upon  which  the  daughter's  interest 
is  to  depend,  and  that  which  alone  can  found  her  claim  to  the  limitation  of 
this  entire  sum  for  her  benefit  is  not  accomplished.  She  has  not  "  married 
before  the  age  of  twenty-one  with  her  mother's  consent."  The  alternative 
respecting  this  marriage  with  consent,  is  not  merely  formal,  nor  is  it  by  way 
of  substitution  for  other  alternatives,  and  with  an  equal  benefit  annexed,  but 
substantially  difi^erent,  and  with  additional  benefit.  She  is  to  attain  the  age 
of  twenty-one, — a  mere  contingency  of  time, — or  she  is  to  attain  it  unmarried  ; 
or  she  is  to  attain  the  age  of  twenty-five  before  marriage ;  or  she  is  to  marry 
with  her  mother's  consent  under  the  age  of  twenty-one.  Upon  every  one  of 
these  alternatives  after  the  first,  her  state  is  improved.  In  the  first  event,  she 
is  to  have  certain  freehold  houses.  In  the  second,  she  is  to  have  an  imme- 
diate £5000.  In  the  third,  she  is  to  have  an  additional  £5000.  In  the 
fourth,  she  is  to  have  £10,000  before  the  age  of  twenty-one ;  but  £5000  is  to 
be  settled  upon  the  marriage.  The  fourth  contingency,  interposing  its  earlier 
effects,  saves  the  legatee  from  the  restraint  of  the  other  stipulations,  and  by 
an  act  *vei7  much  in  her  own  power.  The  will  does  not  compel  her  j..^, ,  o-, 
to  be  unmarried,  or  to  wait  for  the  age  of  twenty-five,  or  even  that  of 
twenty-one  before  her  marriage  ;  for  she  is  only  to  marry  with  her  mother's 
consent  before  twenty-one,  and  the  £10,000  is  from  that  instant  her  own, 

(2.)  There  is  no  condition  respecting  marriage  after  the  age  of  twenty-five  ; 
and  there  is  no  condition  requiring  consent  after  the  age  of  twenty-one.  The 
contingency  of  time  is  definite ;  but,  coupled  with  a  condition  essential  to  its 
benefit,  or  indefinite,  except  as  falling  within  a  certain  period,  but  so  as  to 
admit  of  being  defined  by  the  performance  of  a  condition, — the  marriage  with 
consent.  The  will  may  be  construed  as  if  the  words  had  been  ^'  when  she  has 
attained  the  age  of  twenty-five  unmarried,  or  when  she  has  married  before 
twenty-one,  with  her  mother's  consent." 

(3.)  There  is  no  direct  legacy  to  the  daughter.  The  gift  is  to  executors; 
and  they  are  to  pay  at  the  several  periods  for  her  benefit. 

(4.)  She  has  a  sure  provision  if  she  arrives  at  the  age  of  twenty-one,  mar- 
ried or  unmarried,  and  married  with  or  without  consent. 

(5.)  Upon  failure  of  the  other  events  described,  there  is  a  marked  and  clear 
limitation  over  to  the  mother.  But  it  is  argued,  that,  upon  the  failure  of  this 
event,  (i.  e.  of  the  marriage  before  twenty-one,  with  consent,)  no  limitation 
over  to  the  mother  appears  in  the  will ;  and  it  is  true,  that,  in  terms,  no  such 
limitation  is  to  be  found.  But  there  is  a  limitation  over  of  the  whole  £10,000 
directly  to  the  mother,  in  the  very  next  clause  to  this,  upon  the  event  of  the 
daughter's  death  before  twenty-five  unmarried;  and  she,  the  mother,  is  resi- 
duary legatee. 

The  assignees  of  the  mother  argue  thus  in  their  claim  to  the  £10,000  : — 


350  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 


1st.  The  intention  of  the  testator  is  clear  to  make  the  condition  peremptory, 
and  limit  over  the  interest. 

2ndly.  The  condition  which  he  has  imposed  is  unexceptionable  if  it  stood 
alone,  and  is  indispensable  to  any  benefit  under  the  will ;  or, 

*3rdly.  At  least  it  would  be  unexceptionable  here,  as  put  by  way  of 
L  alternative,  and  enabling  a  better  provision. 

4thly.  It  would  avail  here  as  a  limitation  of  time  ;  or, 

5thly.  As  being  followed  by  a  limitation  over. 

1st.  As  to  the  "intention.  The  will  has  clearly  meant  that  her  marriage 
without  consent  before  twenty-one  should  put  her  in  the  same  condition  re- 
specting her  fortune  as  if  she  died  before  she  attained  the  age  of  twenty-five 

unmarried. 

It  has  been  argued,  that  a  right  in  the  whole  £10,000  vested  in  the 
daughter  at  the  age  of  twenty-one,  which  this  clause  respecting  the  limitation 
over',  if  it  operates  at  all  is  to  divest,  and  that  a  right  cannot  be  divested  by 
implication  ;  but  that  argument  overlooks  the  word  "  unmarried." 

Another  of  the  counsel  has  more  plausibly  reasoned,  that  inasmuch  as  the 
limitation  over  is  expressly  upon  another  event,  it  can  only  operate,  in  case  of 
that  event,  as  a  limitation  over ;  so  that,  in  this  respect,  if  the  mother  has  any 
interest  at  all,  it  must  be  in  her  character  of  residuary  legatee ;  but  that  she 
cannot,  in  that  character,  take  this  interest ;  because  the  testator  has  implied 
that  she  is  only  to  have  it  in  a  certain  event,  which  has  failed ;  but  why  can- 
not she  be  excluded  in  one  view  from  this  interest,  and  admitted  in  another 
which  is  in  alio  jure,  and  which,  by  a  devolution  of  law  upon  a  partial  intes- 
tacy falls  into  the  residuum  ? 

The  counsel  adds,  that  if  the  mother  is  excluded,  the  daughter  alone  can 
take  this  interest.  But  that  is  not  a  correct  inference ;  for,  if  the  residue 
given  to  the  mother  must  be  formed  after  a  deduction  of  this  interest,  the 
part  which  is  deducted  will  be  a  residue  undisposed  of. 

2nd.  The  condition  is  good — even  if  it  were  the  case  of  a  direct  legacy  to 
the  daughter,  upon  condition  of  a  marriage,  with  consent  of  the  mother  before 

twenty-one. 

It  is  a  good  condition  by  the  civil  law,  and  good  in  this  court,  which  has 
not  implicitly  followed  the  rule  of  the  civil  law  as  to  legacies,  nor  with  an 
accurate  reference  either  to  the  reason  of  that  rule  or  to  the  distinction 

upon  it. 

*By  the  civil  law,  the  condition  of  remaining  unmarried  is  void, 
'-  -'  and  so  is  the  condition  which  requires  any  consent,  though  it  be  that 
of  the  parent.  This  too,  with  or  without  a  limitation  over  superadded.  And 
if  the  o-cneral  rule  which  dispenses  with  a  parent's  consent  be  just,  the  extent 
of  it  thus  far  has  very  good  sense  in  it. 

The  reason,  however,  of  the  rule,  as  given  in  Swinburne,  is  perfectly  ridi- 
culous. It  stands  thus  :  "  A  restaint  upon  marriage  in  general  is  void.  This 
rule  is  peremptory  and  universal.  A  requisition  of  consent,  which  the  testator 
knows  will  never  be  given,  would  baffle  the  rule  ',  every  testator  may  be  guilty 


SCOTT     V.     TYLER.  351 


of  this  evasion  ;  every  nominal  trustee  may  be  an  accomplice  in  it ;  a  testator 
■who  is  a  parent  may  act  in  this  point  against  his  own  child ;  therefore,  says 
the  civil  law,  we  must  cut  the  knot, — '  Eescindi  debet  quod  fraudandec  legis 
gratia  ascriptum  est.'  " 

But  even  the  civil  law,  with  all  its  enmity  against  the  condition,  lets  in  the 
effect  of  it  in  another  shape  ;  for  if  a  marriage  with  consent  is  to  mark  the  time 
at  which  the  legacy  will  be  due,  the  Ecclesiastical  Courts  will  not  anticipate 
the  event,  or  act  upon  it  by  halves.  In  the  case  of  Hervey  v.  Aston,  Com. 
Rep.  735,  the  words  of  the  Lord  Chief  Baron  Comyns  are  these — "  If  a  legacy 
be  given  upon  a  preceding  fact,  that  may  or  may  not  be  done,  or  be  to  be  paid 
at  such  a  time  as  may  or  may  not  come ;  if  the  fact  be  not  performed,  or  if 
the  time  should  never  come,  the  legacy  would  be  lost  by  the  civil  law ;"  and 
in  p.  744,  "  When  a  legacy  is  given  to  be  paid  at  a  certain  time,  or  upon  a 
certain  act  which  is  to  be  performed,  nothing  is  due  till  the  time  incurred,  or 
the  act  performed,  by  the  civil  law."  He  cites  for  this  Dig.  1.  36,  tit.  2,  c. 
21,  22.  In  p.  756,  he  puts  the  very  case  of  money  given  to  be  paid  upon 
marriage  with  consent,  and  holds,  that,  in  that  case,  the  legacy  would  be  sus- 
pended by  the  civil  law. 

He  seems  to  consider  the  marriage  and  the  consent  as  two  events  that  are 
indispensable  marks  of  the  time  at  which  the  gift  shall  begin  to  speak. 

This  rule,  however,  of  the  civil  law,  as  it  respects  the  mere  condition,  is 
not  implicitly  adopted  here,  and  the  *reason  of  it  never.     For  here,      .,^-,-, 

1  ■  •  r  1  1 1 

the  condition  of  a  parent's  consent  is  good  and  meritorious.  Lords  ^  "  J 
Hale  and  Kelynge,  in  Fry  v.  Porter,  approve  it  in  very  emphatical  terms. 
Lord  Chief  Baron  Comyns  does  the  same  in  Hervey  v.  Aston,  Com.  Rep.  748. 

The  idea  of  a  condition  in  terrorem,  as  it  is  called,  is  perfectly  ridiculous. 
What  is  a  terror  which  is  never  to  intimidate  ?  Would  a  man  of  sense  impose 
it  ?     Would  any  but  an  idiot  act  upon  it  ? 

The  intention  of  the  restraint  is  to  guard  against  an  improvident  marriage, 
and  punish  it  if  it  shall  have  taken  place.  In  this  view,  which  has  the 
soundest  policy,  the  restraint  is  here  strict!  juris  to  a  certain  extent ;  and 
though  it  is  difficult,  perhaps,  to  ascertain  the  limits  with  accurate  precision, 
they  are  marked  enough  to  bear  directly  upon  the  case  before  us. 

According  to  Lord  Chief  Baron  Comyns,  in  Ilercey  v.  Aston,  p.  729,  "If 
money  be  directly  given  to  A.,  in  consideration  that  the  legatee  shall  not 
marry  without  consent,  and  there  is  no  devise  over,  the  condition  is  ineffectual 
even  here ;"  that  is,  in  other  words,  if  an  absolute  gift  is  qualified  by  that 
condition  imposed  upon  it. 

But  it  seems  agreed,  that  if  it  be  a  devise  of  real  estate,  or  of  a  sum  charged 
upon  real  estate,  the  condition  would  be  effectual,  though  without  a  devise 
over. 

These  distinctions  are  not  very  becoming;  and  they  offend  one  the  more, 
when  the  degree  in  which  the  rule  taken  from  the  civil  law  is  adopted  here, 
has  been  justified  by  a  view  to  the  uniformity  of  the  two  Courts,  though  uni- 
formity in  the  same  Court  is  thus  overlooked.     Suppose  portions  to  A.  and  B., 


352  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 

two  daughters,  of  the  same  value,  and  qualified  by  the  same  condition,  what 
can  be  more  irrational  or  incongruous  than  to  repel  the  condition  as  to  one 
of  the  daughters;  and  adopt  it  as  to  the  other,  because  the  fund  happens  to 
be  diflferent  ? 

The  reason  of  rejecting  the  rule  where  there  is  a  limitation  over  is  explained 
by  Chief  Baron  Comyns  to  be  this  :  he  says  the  intention  is  better  marked  by 
that  circumstance ;  and  he  contends,  that  if  a  similar  intention  can 
L  ^-'-J  *be  collected  aliunde,  it  should  have  the  same  effect.  Lord  Hard- 
wicke,  indeed,  says,  the  intention  is  considered  as  favoring  the  devisee  over, 
and  as  vesting  a  right  in  him ;  that  it  is  a  condition,  therefore,  in  that  view, 
taken  more  as  beneficial  to  him  than  as  prejudicial  to  the  legatee  restrained. 

But  if  money  be  given  to  be  paid  at  twenty-one,  or  marriage  with  consent, 
both  Courts  are  agreed  that  it  is  a  good  restraint,  and  that  no  money  will  be 
due  till  one  or  other  of  those  events  has  taken  place,  and  ti  fortiori,  if  the 
money  be  not  given  to  the  legatee,  to  be  paid  at  those  periods,  but  given  to 
another  in  trust  for  that  payment.  The  distinction  is  taken  in  Ilerveij  v. 
Aston,  Com.  Bep.  752;  and  the  point  itself  decided  by  an  obvious  implication 
resulting  from  the  actual  judgment  in  that  case. 

The  £2000  given  by  that  will  was  personal  esteite ;  but  it  had  the  same  con- 
dition imposed  upon  it,  which  had  also  fettered  a  real  devise  in  the  same  will, 
and  that  condition  was,  "a  marriage  with  consent;"  yet,  if  the  condition  of 
requiring  assent  is  void  in  a  personal  gift,  the  marriage  without  the  consent 
would  have  entitled  the  legatee. 

But  the  argument  of  Lord  Chief  Baron  Comyns  is  more  direct.  Page,  751, 
he  construes  the  will  as  if  expressed  thus  :  "When  she  marries  with  consent,  I 
give  her  £2000  more."  He  first  argues  from  a  general  intention,  covering 
both  funds,  and  pointing  at  the  time  when  the  gift  shall  take  place;  but  if 
the  condition  were  necessarily  bad  in  a  personal  gift,  the  time  could  not  be 
so  qualified. 

lie  then  reasons  from  its  being  a  personal  gift,  in  augmentation  of  the  real 
devise  preceding  it,  and  he  lays  particular  stress  upon  the  want  of  a  gift  im- 
mediately to  the  child.  lie  says,  that  if  she  were  to  die  before  the  first  por- 
tion could  be  paid,  she  would  have  neither  of  the  gifts,  and  he  comes,  p.  753, 
to  the  very  point,  asserting  the  intent  of  the  will  to  be,  that  the  £2000  shall 
be  due  to  her  upon  her  marriage  with  consent,  and  puts  it  as  if  so  expressed. 
He  affirms  the  condition  to  be  lawful,  as  a  condition  precedent,  and  states, 
that,  in  every  other  personal  *gift,  conditions  precedent  must  be  per- 
L  ■'•-'^J  formed,  that  even  the  civil  law  holds  that  rule,  and  that  we  have  no 
instance  the  other  way,  either  at  common  law  or  in  this  Court. 

He  distinguishes  conditions  precedent  and  subsequent  with  particular  care, 
so  as  to  refuse  what  had  been  too  inaccurately  called  precedent  conditions,  and 
which  he  considers  in  the  light  of  subsequent. 

The  distinction  taken  by  him  is  between  some  event  preceding  the  payment 
of  the  legacy,  (whether  coupled  with  a  condition,  or  importing  a  condition 


SCOTT     V.     TYLER.  353 


itself,)  and  a  condition  put  by  way  of  restraint  upon  a  gift  actually  made  com- 
plete by  the  will,  before  the  restraint  is  imposed. 

3d.  But  the  condition  here  would  be  good,  as  enabling  a  better  provision 
by  way  of  alternative. 

If  a  condition  of  marriage  with  consent,  is  by  way  of  proviso  to  amplify  a 
gift,  there  is  no  case  where  this  condition,  remaining  unperformed,  the  addi- 
tional benefit  can  be  received.  ''  You  shall  either  have  £20,  or,  if  you  marry 
with  consent,  you  shall  have  £30."  Shall  the  legatee  marry  without  consent 
and  have  £30  ?  Creagh  v,  Wilson,  2  Vern.  572,  appears  to  be  directly  in 
point.  Stress  is  laid  upon  this  principle,  too,  in  Ilervy  v.  Anton,  Com.  Rep. 
750.  The  testator,  in  the  case  before  us,  gives  £10,000,  at  twenty-five,  to 
his  daughter  unmarried ;  but  if  she  marries  with  consent  before  twenty-one, 
he  accelerates  the  payment,  and  relaxes  the  condition  of  unmarried. 

No  case  can  be  found  in  which  a  new  and  ulterior  benefit,  being  the  reason 
for  a  conditional  gift,  it  can  operate  in  defiance  of  the  terms  imposed. 

4th.  If  the  condition  here  were  in  itself  absolutely  void,  either  taken  as 
precedent  or  subsequent,  yet  it  would  be  good  as  a  mark  of  the  time  when  the 
legacy  should  be  payable — this,  too,  even  by  the  civil  law. 

In  other  words,  if  a  personal  legacy  to  a  daughter  is  made  payable  upon  an 
event  marked  in  the  time  of  it,  by  this  condition  upon  her  marriage,  the  legacy 
is  not  payable  till  the  time  so  described  and  qualified  is  come.     *Lord  r^-iQi-i 
Chief  Baron  Comyns,  in  Hervey  v.  Aston,  is  express  to  this  point :        " 
Com.  Rep.  737,  744,  and  756. 

Swinburne,  p.  269,  states  it  as  no  condition,  if  put  as  an  adverb  of  time 
"  quamdiu"  or  ''  dum  sola  fuerit,"  &c.  Lord  Chief  Baron  Comyns  treats  it 
as  a  limitation  of  time,  and  in  that  view  adduces  the  civil  law  as  being  agreed 
with  him.  This  way  of  considering  it  parries  the  inconvenience  of  refusing 
the  condition,  as  annexed  to  a  personal  gift,  and  adopting  it  as  a  gift  of  real 
estate.  He  distinguishes  between  a  legacy  ''if,"  &c.,  and  the  same  condi- 
tion preceding  the  legacy,  as  the  mark  of  its  time. 

5th.  The  condition  here  is  good,  as  accompanied  with  a  devise  over. 

The  whole  £10,000  is  given  over  to  the  mother,  if  the  daughter  should 
die  unmarried. 

If  the  testator  had  said,  "  unmarried  before  twenty-one,"  it  would  have 
been  more  clear ;  but,  even  as  it  is,  it  is  clear  that  the  testator  meant 
"unmarried  before  twenty-one  with  consent,"  not  adverting  to  any  marriage 
after  twenty-one  and  before  twenty-five. 

In  every  other  case  of  the  event  failing,  upon  which  the  particular  legacy 
is  given,  the  mother  takes  by  limitation  over,  nor  can  a  reason  be  assigned 
why  it  should  be  omitted  here,  where  such  peculiar  anxiety  is  marked  for  the 
eflfectual  performance  of  the  condition. 

The  local  position  of  the  limitation  over  of  the  whole  £10,000  is  not  imma- 
terial. It  comes  immediately  after  the  gift  of  the  £10,000  upon  a  marriage 
with  consent  before  twenty-one. 

If  this  were  not  the  key  to  it,  the  absurdity  would  be  extreme ;  for  the 
VOL.  II.— 23 


351  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 

testator  would  then  say,  "  If  you  should  marry  before  twenty-one  without  con- 
sent, and  die  before  twenty-five,  having  so  married,  it  is  not  to  be  given  over, 
though,  in  failure  of  all  the  other  events,  it  is." 

In  Hervey  v.  Aston,  a  marriage  with  consent  having  preceded  in  the  same 
will,  subsequent  words  referring  jrenerally  to  marriage,  are  bound  as  referring 
to  a  marriage  with  consent.  Thus,  it  appears,  that  in  the  case  before  us,  the 
r*i9Fi"i  intention  is  clear  from  a  conditional  gift,  the  condition  *too  is  good 
in  itself, — good  as  a  limitation  of  time, — good,  as  annexed  to  a  better 
provision, — and  good  as  accompanied  with  a  limitation  over. 

Mr.  Hargrcave^  for  the  assignees  of  Mr.  Tyler. — Two  questions  occur  in 
this  cause :  the  one  as  to  the  bonds  deposited  with  Messrs.  Hankey,  with 
respect  to  which  I  am  not  instructed  to  interpose;  the  other,  concerning  the 
£10,000  claimed  by  Mr.  and  Mrs.  Scott,  which  is  a  question  of  great  import- 
ance, as  it  involves  the  general  doctrine  of  the  Court  as  to  gifts  on  condition 
of  marriage  being  merely  in  terrorem. 

Four  times  has  this  Court  called  in  the  assistance  of  the  judges  of  the  courts 
of  law  upon  difierent  branches  of  this  doctrine.  Lord  Clarendon,  in  the  case 
of  BeUasis  v.  Ermine,  (15  Car.  2,)  was  assisted  by  Lord  Chief  Justice  Hyde 
and  Lord  Chief  Baron  Hale.  Lord  Keeper  Bridgman,  in  the  case  of  Fry  v. 
Porter,  (21  Car.  2,)  had  the  three  chiefs  as  assessors.  A  few  years  after  the 
Ilevolution,  in  Bertie  v.  Lord  FaUdand,  Lord  Somers  called  in  the  aid  of  the 
Chief  Justices  Holt  and  Treby;  and  early  in  the  last  reign,  Uervcy  v.  Aston 
was  heard  before  the  Lord  Chancellor,  assisted  by  the  Chief  Justices  Lee  and 
Willes,  with  Mr.  Justice  Comyns.  But  notwithstanding  this,  and  that  rew 
cases  occurred  in  the  latter  part  of  Lord  Ilardwicke's  time,  yet,  during  the 
time  that  the  Great  Seal  was  in  commission,  the  case  of  Manaell  v.  Manscll, 
on  a  power  of  jointuring  given  to  a  testator  for  life,  on  condition  of  his  marry- 
ing with  consent,  came  on,  and  underwent  great  discussion.  In  the  interval 
between  that  case  and  the  present  time,  two  cases  only  seem  to  have  occurred, 
Randal  v.  Payne,  (1  Bro.  C.  C.  55,)  and  Hemmings  v.  31unkley,  (1  Bro. 
C.  C.  304,)  neither  of  which  appears  to  have  been  much  debated. 

The  present  case  induces  a  necessity  of  re-examining  the  principles  and 
authorities  of  the  doctrine  in  question  :  I  shall,  therefore,  examine  the  present 
case  as  far  as  relates  to  the  condition  of  marriage  with  consent,  annexed  to  the 
legacy  given  by  Mr.  Kee. 

r*l9n  Under  the  will  in  question,  Mr.  and  Mrs.  Scott  claim,  *in  Mrs. 
"  Scott's  right,  the  legacy  of  £10,000  South  Sea  annuities,  and  found 
their  claim  thus  : — That  Mrs.  Scott  having  married  under  twenty-one  years  of 
age,  the  material  part  of  the  contingency  in  Mr.  Kee's  will  respecting  the 
legacy  has  taken  efiect,  and,  therefore,  that  she  is  entitled  to  the  stock, 
with  the  accumulation  of  interest.  Against  this  the  assignees  contend,  that 
she  is  not  so  entitled,  because  she  has  married  without  the  consent  of  her 

*  Sec  Ilarg.  Jur.  Arg.  vol.  1,  p.  22. 


SCOTT     V.     TYLER.  355 


mother.  The  bill  states  a  kind  of  consent  to  have  been  obtained,  but  this  is 
totally  contradicted  by  the  mother's  answer,  and  there  is  not  a  syllable  of 
proof  of  such  consent,  so  that  the  fact  must  be  taken  to  be,  that  she  has  mar- 
ried under  twenty-one,  and  without  tlie  consent  of  her  mother. 

The  case  has  been  argued  on  behalf  of  the  plaintiffs  in  two  ways  : — First, 
that  Mrs.  Scott's  title  has  accrued  within  the  contingencies  under  the  will. 
Secondly  and  principally,  that  the  condition  in  the  will,  as  far  as  it  requires 
marriage  with  consent  of  the  mother,  is  a  condition  in  terrorem  only,  and, 
as  such,  null  and  inoperative. 

With  respect  to  the  first  point,  it  is  not  much  relied  upon;  the  true  answer 
to  it  will  be  to  state  the  contingencies.  The  first  contingency  is,  that  upon 
her  attaining  her  age  of  twenty-one,  a  moiety  of  the  stock  shall  be  transferred 
to  her,  in  case  she  should  be  then  unmarried ;  the  event  is,  that  at  twenty-one 
she  was,  and  still  is,  married  to  Mr.  Scott :  this  contingency,  therefore,  has 
not  happened.  The  next  contingency  is  her  attaining  twenty-five,  and  beinp- 
then  unmarried,  when  the  remaining  moiety  is  to  be  transferred;  but  to  this 
there  is  a  double  answer, — she  has  not  yet  attained  twenty-five,  and  she  is 
married.  The  third  contingency  is,  her  marrying  under  twenty-one  with  the 
consent  of  her  mother;  but  this  contingency  neither  has  happened  nor  ever 
can  happen ;  for  she  married  under  twenty-one  without  consent,  and  has  con- 
tinued married  till  after  her  age  of  twenty-one.  These  are  the  only  contin- 
gencies in  the  will,  and  are  so  framed  that  no  one  of  them  is  complied  with. 
It  has,  however,  been  attempted  to  raise  an  argument  *in  favor  of  r*i9''n 
Mrs.  Scott,  from  the  devise  over  to  Mrs.  Tyler,  which  gives  the  ''■  ^'^ 
£10,000  to  her  only  in  the  event  of  Mrs.  Scott's  dying  before  twenty-five, 
unmarried.  But  this  is  inconclusive,  because  the  real  question  is  as  to  Mrs. 
Scott's  right,  not  Mrs.  Tyler's;  because  it  vests  Mrs.  Tyler's  right  on  the  de- 
vise over,  which  really  depends  on  the  residuary  clause,  because  the  title 
on  which  each  rests  depends  on  the  contingencies,  and  because  the  implica- 
tion that  Mrs.  Scott  is  entitled  to  whatever  Mrs.  Tyler  is  not,  is  too  violent. 

I  therefore  proceed  to  the  second  and  great  point  in  the  cause.  The  posi- 
tion maintained  by  the  plaintiffs  is,  that  it  is  the  rule  of  the  Court,  in  case  of 
legacies  of  personal  property,  to  consider  conditions  in  restraint  of  marriao-e  as 
merely  in  terrorem,  unless  where,  upon  the  breach  of  the  condition,  the  legacy 
is  expressly  devised  over  to  a  third  person.  That  such  a  rule  should  ever 
have  existed  appears  wonderful;  and  if  the  authorities  were  out  of  the  case, 
the  rule  could  not  be  supported. 

There  is  no  policy  in  our  law  which  objects  to  reasonable  restraints  on  mar- 
riage, although  it  will  not  admit  of  an  absolute  prohibition.  On  the  contrary, 
it  prohibits  marriage  under  twenty-one,  without  consent  of  parents  or  guar, 
dians.  A  legacy,  therefore,  upon  those  terms,  instead  of  being  against  law,  co- 
incides with  and  enforces  it ;  the  legality  of  such  a  legacy  has  been  recognized 
in  several  instances,  notwithstanding  the  condition  has  met  with  much  oppo- 
sition. It  was  once  contended,  that,  in  a  devise  of  land,  on  condition  of 
marrying  with  consent,  the  condition  was  null ;  but  that  point  was  settled  in 


356  COXDITIONS     IN     RESTRAINT     OF     MARRIAGE. 

favor  of  the  condition,  in  Fry  y.  Porter,  1  Ch.  Ca.  138;  1  Mod.  300;  and  in 
Bertie  v.  Lord  Falkland,  3  Ch.  Ca.  129.  So  in  the  case  of  a  portion  to  be 
raised  out  of  land,  in  Hervey  v.  Aston,  which  also  settled  that  the  condition  is 
effectual  on  a  legacy  having  reference  to  a  portion  to  be  raised  out  of  land ;  all 
agree  that  it  is  so  of  a  legacy  in  money  with  a  devise  over.  In  Mansell  v. 
Manscll,  the  condition  was  held  effectual,  on  a  power  of  jointuring  with  land, 
r*1 981  ^y  ^^^  unanimous  opinion  of  the  Lords  Commissioners.  *A  question 
arose  before  Lord  Hardwicke,  whether  the  condition  was  effectual  with 
respect  to  money  to  be  laid  out  in  land.  This  was  in  1743,  in  the  case  of 
Heady  V.  Cohan,  a  note  of  which  is  among  Mr.  Joddrell's  MSS.,  but  the  point 
went  off,  the  determination  of  it  being  unnecessary. 

Is  there  any  latent  intent  of  the  testator  which  the  rule  seeks  to  establish  ? 
The  rule  seems  to  imply  this  :  construing  it  to  be  iuterrorem  seems  as  if  the 
intention  was  to  deter  the  legatee ;  but  what  terror  can  arise  from  a  condition 
known  to  be  a  nullity?  It  is  impossible  that  the  testator  cfin  mean  to  impose 
a  void  condition.  Is  there,  then,  any  rule  of  equity  which  interferes  ?  There 
can  be  only  one  to  have  recourse  to ;  and  that  is,  that  this  Court  will  relieve 
against  penalties.  It  will  so ;  but  then  it  is  part  of  the  rule  to  exact  compen- 
sation; and  where  that  cannot  be  given,  the  rule  does  not  apply;  but  in  these 
cases  there  can  be  no  measure  of  compensation  but  the  penalty,  so  that  the 
rule  is  completely  inapplicable.  Where,  then,  is  the  foundation  of  the  rule 
of  considering  restraints  on  marriage  as  only  in  terrorem  to  be  traced  ?  The 
answer  given  is,  that  the  Roman  law^  rejected  such  conditions  as  invalid;  that 
our  Ecclesiastical  Courts  followed  the  rule  of  the  Roman  law,  and  that  when 
the  courts  of  equity  assumed  a  concurrent  jurisdiction  over  legacies,  they  held 
themselves  bound  to  adopt  the  same  rules. 

With  respect  to  the  Roman  law,  it  certainly  was  unfavorable  to  conditions 
in  restraint  of  marriage ;  many  of  its  constitutions  tend  to  promote  matrimony, 
and  discourage  celibacy ;  the  most  celebrated  provisions  are  those  contained  in 
the  law  commonly  called  the  Lex  Julia,  but  which  is  properly  the  Lex  Papia 
Poppsea,  the  Lex  Julia  being  a  much  earlier  law.  Among  the  provisions  in 
the  Lex  Papia  Poppaea,  for  encouraging  matrimony,  is  one  aimed  against 
legacies  on  condition  of  celibacy.  It  is  in  the  29th  chapter  of  the  Remnants 
of  the  Law,  as  collccted__by  Heineccius  :^  the  words  are,  "  Si  quis  celibatus  aut 
vidultatis  conditionem  hasredi  legatariove  injunxerit :  hocres  legatariusve  ea 
rjf-i.)(x-\  conditionc  liberi  suuto,  neque  co  minus  *delatam  hasreditatem  lega- 
tumve,  ex  hac  lege,  conscquuntor;"  the  terms  of  the  law,  therefore, 
only  nullify  conditions  wholly  forbidding  mariage,  but  do  not  make  invalid  all 
restraints  upon  it.  The  frauds  upon  the  law,  indeed,  induced  a  large  inter- 
pretation, extending  to  conditions,  on  account  of  their  tendency  to  celibacy; 
as  when  a  legacy  was  given  op  condition  of  marrying  a  particular  person,  who 
was  so  inferior  as  to  make  tJie  marriage  disreputable,  it  was  deemed  equivalent 

1  "  Common  law"  in  the  report  is  evidently  a  mistake. 

'^  Tleincccius  in  legem  Papiam  Poppa?am,  4to,  1726,  p.  94.  And  see  an  ample  com- 
mentary on  this  chapter  of  the  law  in  the  same  book,  p.  298. 


SCOTT     V.     TYLER.  357 

to  a  condition  of  celibacy,  and  brought  within  the  construction  of  the  law. 
So,  if  a  legacy  was  given  with  a  condition  of  marriage  ex  arbitrio  alterius,  it 
was  null,  under  the  idea  that  it  was  an  evasion  of  the  law,  by  naming  a  person 
who  would  not  consent  to  any  marriage.  But  it  is  impossible  to  argue  from 
these  provisions  to  our  law,  which  will  endure  conditions  not  to  marry  without 
consent,  where  they  do  not  amount  to  making  marriage  impracticable.  In 
arguing  upon  the  law  of  England,  it  cannot  apply  in  argument  that  the  law 
of  Home  was  otherwise.  The  Court  cannot  adopt  the  Lex  Julia,  or  the  Lex 
Pappia  Poppasa,  where  our  law  is  contrarient.  Besides,  it  is  far  from  clear 
that  the  Roman  law  did  reject  conditions  in  restraint  of  marriage  to  the 
extent  supposed.  In  the  case  taken  from  that  law,  the  restraint  is  perpetual, 
and  is  given  to  a  stranger, — not,  as  in  the  present  case,  restrained  to  a  limited 
time,  and  the  consent  required  that  of  the  parent,  a  restraint  imposed  by  the 
law  itself.  There  is  no  authority  to  show  that  such  a  restraint  would  have 
been  rejected  by  the  Roman  law.  With  respect  to  the  ecclesiastical  courts,  it 
is  probably  a  mistake  that  they  carried  the  rule  to  the  extent  in  which  the 
Court  of  Chancery  is  understood  to  have  received  it.  What  authority  is  there 
to  show  that  there  was  any  such  rule  ?  Since  the  courts  of  equity  have  assumed 
a  concurrent  jurisdiction  over  legacies,  the  ecclesiastical  courts  have  little  cog- 
nizance of  them ;  and  when  they  are  called  upon,  instead  of  giving  the  rule  to 
the  Court  of  Chancery,  they  regulate  their  proceeding  by  our  equity  reports. 
Swinburne  and  Godolphin  are  almost  the  only  books  which  have  been  pro- 
duced by  the  ecclesiastical  *lawyers  ;  but  Swinburne  is  wholly  occu-  p^-.  oa-i 
pied  by  the  Roman  law  upon  his  subject;  and  Godolphin,  where  he 
does  not  follow  him,  takes  his  materials  from  the  reports  of  decisions  in  the 
temporal  courts.  The  only  reference  by  name  to  a  legacy  cause,  decided  in 
the  spiritual  court,  is  in  Moore's  Rep.  857,  where  Judge  Winch  cites  Pigot's 
case,  in  which  the  legacy  was  held  good,  notwithstanding  the  breach  of  a  con- 
dition not  to  marry  without  consent.  From  this  case  alone  the  courts  of  equity 
are  said  to  have  borrowed  this  rule  from  the  Ecclesiastical  Court,  and  are  said 
to  have  adopted  it,  not  from  conviction  of  its  rectitude,  but  merely  for  the 
sake  of  conformity  between  the  concurrent  jurisdictions,  which  in  general  is 
certainly  highly  laudable,  but  has  its  proper  bounds.  But  in  the  present  case 
there  is  a  seeming  inconsistency,  as  we  are  immediately  told  that  the  courts 
of  equity  reject  a  very  material  part  of  the  rule  adopted  by  the  Ecclesiastical 
Court.  With  them  a  devise  over  will  be  no  guard  to  the  condition  ;  but  it  is 
confessed,  that,  in  the  courts  of  equity,  it  will  render  the  condition  inviola- 
ble,— a  deviation  which  greatly  detracts  from  the  conformity  of  the  jurisdic- 
tions. 

The  doctrine  appears,  from  this  view  of  it,  to  rest  on  erroneous  opinions 
with  respect  to  the  Roman  law,  and  the  practice  of  the  Ecclesiastical  Court ; 
but  it  has  become  so  entrenched  by  authorities,  and  supported  by  great  names, 
especially  those  of  Hale,  Nottingham,  and  Hardwicke,  that  it  cannot  be  wholly 
denied  to  be  the  law  of  the  Court ;  it  can  only  now  be  pressed,  that  the  Court 


358  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 

•will  not  carry  it  an  iota  beyond  its  limits,  and  resist  its  application  to  such  a 
case  as  the  present.     For  this  purpose,  I  shall  contend, — 

1st,  That  the  doctrine  is  inapplicable  where  the  condition  of  marriage  is 
precedent ; 

2ndly,  That  the  residuary  devise  in  the  present  case  is  a  sufficient  devise 
over; 

ordly.  That  the  doctrine  ought  to  be  confined  to  immediate  and  direct 
r*iqi-i  legacies,  and  not  to  include  a  trust  *engrafted  upon  them;  under 
^  which  latter  denomination  the  legacy  in  question  must  be  admitted 

to  be. 

If  I  succeed  in  either  of  these  points,  it  will  negative  the  claim  of  the  plain- 
tiffs to  this  legacy  of  the  £10,000. 

1st,  As  to  the  first  of  the  three  points.  I  acknowledge  that  the  authorities 
in  support  of  the  iu  terrorem  doctrine  are,  to  a  certain  extent,  so  strong  and 
so  uniform,  that  they  extort  submission ;  but,  in  so  saying,  I  look  to  the  dis- 
tinction between  precedent  and  subsequent  conditions.  Where  the  condition 
is  subsequent  the  authorities  are  peremptory.  I  entertained  a  doubt  whether 
it  was  not  the  same  as  to  conditions  precedent,  being  aware  that  Lord  Hard- 
wicke  had  refused  to  draw  the  distinction  between  them  where  restraint  of 
marriage  was  concerned ;  hut  upon  serious  investigation,  I  found  ample  room 
for  exempting  conditions  precedent,  both  upon  the  principle  on  which  equity 
affords  relief,  and  upon  the  authorities ;  and  with  respect  to  the  principle  on 
which  the  Court  relieves,  it  does  not  extend  to  conditions  precedent.  The 
only  principle  to  which  it  can  be  referred,  is  that  by  which  the  Court  relieves 
against  penalties  and  forfeitures.  The  rule  with  respect  to  marriage  conditions 
when  adopted  by  the  courts  of  equity,  therefore  became  arranged  under  that 
head,  and  not  being  permitted  to  have  any  further  effect  than  to  alarm  the 
parties,  they  obtained  the  names  of  conditions  in  terrorem.  Unfortunately 
that  principle  required  compensation  to  be  made,  which  will  not  hold  as  to 
these  conditions ;  but  this  only  shows  that  the  principle  has  been  misapplied, 
not  that  the  relief  has  not  been  administered  under  color  of  that  principle. 
If  this  be  allowed  to  be  the  principle,  let  us  examine  whether,  on  that  account, 
conditions  precedent  are  not  entitled  to  be  exempted  from  the  interference. 
The  old  distinction  between  conditions  precedent  and  conditions  subsequent, 
to  which  Lord  Coke  calls  the  attention  as  of  the  first  importance,  is  this  :  that 
where  an  estate  is  given  on  a  condition  subsequent,  the  estate  vests  till  the 
condition  or  contingency  takes  place,  and  then  it  operates  by  divesting  or 
destroying  the  estate.  It  is  resorted  to  in  *order  to  enforce  the  ob- 
L  ■••'^-'J  jggi;  Qf  i\^Q  donor  by  the  terror  of  a  penalty,  and  as  it  operates  by  the 
destruction  of  estates,  it  is  considered  as  odious  and  stricti  juris.  In  a  MS. 
common-place  book  of  Judge  "Doddcridgc's  it  is  said,  "  Conditions  that  go  in 
defeasance  shall  be  taken  strictly,  for  they  are  odious."  To  the  same  effect 
is  Co.  Litt.  218,  a;  Fmunccss  case,  8  Co.  90;  title  "Condition,"  in  Fulbeck's 
Par.  and  Shep.  Touch.  One  effect  of  this  disfavor  is,  that  if  the  condition  is, 
or  by  the  act  of  God  becomes  impossible,  the  estate  is  absolute  as  if  there  had 


SCOTT     V.     TYLER.  359 


been  no  condition  :  Co.  Litt.  206,  a.  So,  where  the  condition  subsequent  is 
unhiwful :  Fulbeck's  Par.  part  2,  66,  b,  citing  Perkins,  Sect.  139,  and  4  Hen. 
7,  4,  and  2  Hen.  4,  9.  Another  effect  of  the  odium  under  which  they  lie,  is, 
that  they  are  construed  strictly :  Fraunccs's  case,  8  Co.  90,  b,  and  1  Leon, 
305.  Thus  it  appears,  that,  in  respect  to  the  penal  nature  of  these  conditions, 
the  phrase  of  in  terrorem  is  peculiarly  applicable  to  them. 

The  condition  precedent  is  of  quite  an  opposite  nature ;  there  the  estate 
cannot  commence  until  the  condition  is  performed,  or  the  contingency  has 
happened.  It  has,  therefore,  been  observed  upon  it  that  "  Adimpleri  debet, 
prius  quam  sequatur  effectus."  A  passage  in  Plowden  conveys  an  idea  of 
the  dependent  nature  of  the  estate  on  such  a  condition.  Judge  Brown  says, 
Plowd.  272,  "  If  I  grant  to  you,  that  if  you  will  do  such  a  thing,  you  shall 
have  a  lease  in  such  particular  laud  of  mine ;  there  the  condition  precedes  the 
lease,  as  the  needle  precedes  the  thread,  and  as  the  needle  draws  the  thread 
after  it,  does  the  condition  the  lease."  The  condition,  therefore,  is  beneficial, 
not  penal,  and  is  favored  and  benignantly  interpreted,  according  to  the  inten- 
tion of  the  words,  Co.  Litt.  218,  a,  219,  b.  The  phrase  of  in  terrorem  is  there- 
fore from  its  nature  inapplicable  to  them  :  actual  performance  is  essential  to 
them,  notwithstanding  their  favorable  interpretation ;  therefore,  though  the 
condition  be  impossible  or  illegal,  no  estate  can  arise,  and  it  is  the  same  as  if 
none  had  been  given  :  Co.  Litt.  206,  a,  and  b,  217,  b,  218,  a;  Ful.  Par.  part 
2,  67,  a.  The  result  is,  *that  though  penal  conditions  to  destroy  ^-.^ot 
estates  may  be  dispensed  with,  beneficial  conditions  to  raise  estates  L  '^'^-' 
must  always  be  complied  with. 

If  this  doctrine  is  important  at  law,  it  essentially  affects  the  jurisdiction  of 
equity.  From  the  penal  nature  of  conditions  subsequent,  they  in  general  fall 
within  that  lenient  principle  by  which  courts  of  equity  relieve  against  penal- 
ties; but  there  is  no  connection  between  this  and  a  condition  precedent,  which 
operates  by  giving  an  estate  and  conferring  a  benefit.  Upon  such  a  condition 
equity  cannot  interpose;  equity  cannot  raise  an  estate  which  the  donor  has 
not  given.  If  such  power  was  to  be  assumed  over  one  subject,  it  might  soon 
extend  over  others,  and  overleap  all  boundaries.  If  the  principle  on  which 
this  argument  proceeds  be  just,  is  there  a  reason  to  be  alleged  why  marriage 
conditions  precedent,  when  conformable  to  law,  should  not  be  strictly  complied 
with  ?  Nor  is  the  distinction  of  penalty  or  no  penalty  new  in  this  Court  : 
there  are  cases  where  the  forum  alone  will  make  the  difference,  as  in  the  case 
where  four,  or  four  and  a  half  per  cent,  interest  is  reserved  in  a  mortgage, 
with  a  condition  of  increasing  the  interest,  in  default  of  punctual  payment, 
to  five  per  cent. ;  the  Court  will  relieve,  because  it  is  in  substance  and  in  form 
a  penalty;  but  if  the  reservation  be  five  per  cent.,  with  condition  of  reducing 
the  interest  to  four,  on  punctual  payment,  equity  cannot  interpose,  because, 
though  they  are  substantially  the  same,  there  is  not  in  this  case  the  form  of  a 
penalty.  This  is  a  stronger  case  than  that  between  estate  and  conditions ; 
because,  with  respect  to  the  payment  of  interests,  the  difference  is  only  formal; 
but  the  difference  between  conditions  precedent  and  subsequent  is  substantial. 


360  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 

If  I  Lave  establislietl  tlie  doctrine  with  respect  to  the  difference  between 
conditions  precedent  and  subsequent,  I  may  proceed  to  argue,  that  the  circum- 
stances of  the  present  case  furnish  less  reason  for  considering  it  as  a  penalty 
than  cases  upon  marriage  conditions  in  general.  This  is  not  the  case  of  a 
child  left  with  a  portion,  wholly  "^dependent  on  a  marriage  conditioned 
|_'lo4J  ^^  ^^  ^j^j^  consent;  it  is  the  case  of  an  additional  portion;  besides 
the  present  portion,  she  has  four  freehold  houses,  with  the  intermediate  rents, 
together  with  the  money  due  on  the  New  Eiver  bonds,  with  the  accruing 
interest  upon  them,  the  principal  sum  of  which  is  £1000 ;  she  has  also  a  con- 
tingent interest  on  the  death  of  the  grandson.  The  present  is  therefore  a 
conditional  addition  to  a  provision  unclogged  by  conditions ;  and  there  is  not 
so  much  to  affect  the  feelings  of  the  Court,  and  impress  the  idea  of  penalty, 
as  a  person,  looking  only  to  this  provision,  might  suppose. 

I  come  now  to  the  authorities  on  the  distinction  between  conditions  pre- 
cedent and  subsequent.  However  nice  the  discrimination  for  which  I  have 
aro-ued  may  be,  I  cannot  expect  it  will  be  recognized,  if  the  current  of  autho- 
rities should  be  against  me.  I  shall  endeavor  to  evince,  that,  however  autho- 
rities on  condition  subsequent  are  against  me,  there  is  an  ample  stock,  with 
respect  to  conditions  precedent,  of  respectable  authorities,  that  these  provisions 
need  not  be  disappointed. 

The  gentlemen  on  the  other  side  have  rested  their  argument  on  the  autho- 
rities; they  have  declined  arguing  it  on  principle,  and  have  referred  the  Court 
to  cases  of  great  weight,  principally  those  in  the  time  of  Lord  Hardwieke. 
The  chief  authorities  they  have  relied  upon  are  these; — Dcdci/  v.  Deslouverie, 
2  Atk.  261.  The  declaration  of  Lord  Hardwieke  certainly  blends  conditions 
precedent  and  subsequent ;  but  he  only  says,  that  the  Court  puts  the  most 
favorable  construction  on  both,  to  prevent  forfeiture;  and  the  judgment  was 
given  on  evidence  of  a  kind  of  consent  to  the  marriage ;  on  which  account  his 
Lordship  cites  Farmer  v.ComjJton,  1  Ch.  Rep.  1;  Wiseman  v.  Forster,  2  Ch. 
Rep.  23,  both  of  which  are  cases  turning  on  consent :  Vnderioood  v.  Morris, 
2  Atk.  185  :  the  report  of  this  case  has  not  a  word  on  the  distinction  of  the 
two  conditions.  I  agree,  however,  that  the  condition  should  be  taken  as  pre- 
cedent :  Fulling  v.  Reddij,  1  Wils.  21.  It  is  not  clear  that  the  condition  in 
this  case  *was  not  subsequent :  Reynish  v.  Martin,  3  Atk.  330 ;  1 
['  ^'^•-*J  Wils.  130.  This  is  an  unambiguous  decision,  that  a  condition  prece- 
dent is  equally  in  terrorem  with  a  subsequent  one;  and  that  the  real  estates 
being  charged  with  the  legacy  will  not  exempt  it  from  the  rule :  Wheeler  v. 
Bincjham,  3  Atk.  804;  1  Wils.  135;  and  in  Mr.  Joddrell's  MS.  Reports.  In 
this  Lord  Hardwieke  repeats  his  opinion  against  distinguishing  conditions 
precedent;  but  the  case  was  on  a  condition  subsequent,  and  Lord  Hardwieke 
treats  it  as  such.  The  earliest  of  these  cases  is  not  further  back  than  Ijord 
Ilardwicke's  accession  to  the  Great  Seal.  The  cases  are  only  five  in  number, 
and  only  two  of  them  can  be  considered  as  decisions  against  the  effect  of  con- 
ditions precedent,  viz.,  Cnderv:ood  v.  Morris,  and  Fe^iiish  v.  Martin.  Only 
one  of  them  is  pointed  in  distinct  terms  against  precedent  conditions ;  and 


SCOTT     V.     TYLER.  3(31 


Lord  Ilardwicte  iu  the  other  does  not  name  the  authorities  on  which  he  relied  • 
so  that  at  last  they  seem  to  compress  themselves  into  one  fully  pointed  decision, 
and  the  opinion  of  one  single  judge  of  equity. 

I  do  not  mean  to  question  that  Lord  Hardwicke's  opinion  on  the  subject 
was  gradually  and  deliberately  formed.  Whether  he  had  made  up  his  mind 
against^  exempting  conditions  precedent  from  the  rule,  at  the  time  when  he 
determined  Ilervei/  v.  Aston,  does  not  clearly  appear;  but  he  certainly  was 
afterwards  satisfied  upon  the  point,  which  gives  great  weight  to  his  opinion. 

Sir  Joseph  Jekyll  was  also  clearly  of  the  same  opinion,  as  appears  by  his  • 
judgment  in  Uerve)/  v.  Aston,  as  reported  by  Mr.  Forrester,  Ca.  t.  Talb.  212. 
And  some  appearance  of  authority  may  be  gathered  for  the  same  position  from 
the  cases  before  the  Kevolution;  but,  according  to  my  idea,  those  cases  were 
decided  upon  as  conditions  subsequent. 

The  first  case  in  favor  of  conditions  precedent  is  that  of  Popham  v.  Bam- 
feld,  1  Vern.  83,  where  Lord  Nottingham  says,  "Precedent  conditions  must 
be  literally  performed,  and  this  Court  will  never  vest  an  estate  where,  by  reason 
of  a  condition  precedent,  it  will  not  vest  in  law." 

In  Bertie  v.  Lord  FalJdand,  .3  Ch.  Ca.  129 ;  Freem.  Ch.  *Kep. 
220,  and  2  Vern.  333,  all  the  Court  (Lord  Somers,  assisted  by  the  l^*"^^^] 
Chief  Justices  Holt  and  Treby)  held,  1st,  that  the  condition  being  precedent, 
the  estate  never  vested;  2nd]y,  that  the  case  was  beyond  the  relief  of  equity. 
The  words  of  the  two  Lord  Chief  Justices,  that  the  condition  of  marriage  was 
precedent,  are  very  strong.  Lord  Chief  Justice  Treby's  words,  according  to 
Vernon,  were  these:— "The  condition,  which  is  precedent,  not  having  been 
performed,  it  is  plain  that  the  estate,  by  the  letter  of  the  will,  is  gone  over  to 
Lord  Falkland."  He  afterwards  said,  "They  run  upon  a  plain  mistake  in 
saying  that  they  come  to  be  relieved  against  a  forfeiture."  In  another  part 
he  says,  "It  is  not  a  case  in  compensation;  it  is  not  capable  of  an  equivalent 
to  answer  the  will  of  the  testator."  Lord  Holt's  words,  according  to  Ch.  Ca. 
130,  were  these: — "The  estate  was  given  on  a  condition  precedent;  and  such. 
is  the  Aiature  of  a  condition  precedent  in  point  of  law,  that  no  action  interpos- 
ing can  be  a  ground  to  relieve  upon,  if  it  be  not  performed ;  so  that,  being  a 
condition  precedent,  though  the  Lord  Guildford  had  died  within  the  th°ree 
years,  and  the  condition  had  become  impossible  by  the  act  of  God,  it  could 
not  have  helped  the  lady.  It  will  not  be  easy  in  a  Court  of  equity  to  show 
any  precedent  of  relief  in  case  of  conditions  precedent,  as  often  happens  in 
cases  of  conditions  subsequent."  Lord  Somers  also  laid  great  stress  on  the 
condition  being  precedent.  The  case  is  of  great  strength— 1st,  It  is  a  decision 
against  a  devisee,  who  was  also  heir-at-law;  2nd,  The  condition  was  a  hard 
one;  3rd,  The  lady  had  shown  a  willingness  to  do  all  the  delicacy  of  her  sex 
would  permit  towards  the  performing  of  it;  4th,  It  was  a  legacy  of  personal 
estate  as  well  as  a  devise  of  land,  and  no  attempt  at  a  distinction  was  taken 
between  them ;  5th,  The  great  ground  of  determination  was,  its  being  a  con- 
dition precedent,  not  the  devise  over ;  for  it  appears  by  Freeman's  Eeports, 
that  the  Lord  Chancellor  did  not  hold  a  devise  over  essential  on  a  condition 


3G2  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 

precedent.  Another  authority  with  me  is  Creagh  v.  Wilson,  2  Vern.  572, 
where  Lord  Cowper  founded  himself  on  the  greater  legacies  being  substantially 

on  a  condition  *precedent.  The  case  is,  therefore,  a  direct  autho- 
•-  ^  rity,  that  if  the  condition  of  marriage  be  precedent,  it  wants  not  a 
devise  over  to  make  it  eflectual.  The  next  is  King  v.  Withers,  Prec.  Ch.  348  ; 
Gilb.  Ch.  Rep,  26.  The  case  shows  Lord  Ilarcourt's  opinion,  that  where  the 
condition  was  precedent,  and  had  not  happened,  he  did  not  think  the  want  of 
a  devise  oYcr  material ;  and  although  the  devise  was  of  a  portion  out  of  land 
no  distinction  was  made  in  that  respect.  In  Gillet  v.  Wrai/,  1  P.  Wms.  284, 
Lord  Chancellor  Cowper  held  the  condition  not  to  be  in  terrorem — 1st,  Because 
the  provision  was  alternative.  2ndly,  Because  the  condition  was  precedent. 
In  Clark  v.  Lucy,  3  Geo.  1,  Lord  Cowper  is  said  (5  Viu.  87,  in  the  side  note) 
to  have  expressed  himself  thus  : — '*  When  the  party  cannot  be  compensated 
in  damages,  it  is  against  conscience  to  relieve ;  and  in  Fri/  and  Porter's  case, 
the  condition  could  not  be  compensated  in  damages,  being  a  marriage  without 
consent.  Precedent  conditions  must  be  literally  performed,  and  a  court  of 
equity  will  never  vest  an  estate  when,  by  means  of  a  condition  precedent,  it 
will  not  vest  at  law.  But  as  conditions  subsequent  are  to  divest  an  estate, 
there  it  is  otherwise,  where  there  can  be  a  compensation  made  in  damages  as 
above ;  but  in  any  other  case,  even  in  a  case  of  condition  subsequent,  it  is  not 
so,"  Ifolmcs  V.  Lysaght,  2  Bro.  P.  C.  103,  Toml.  ed.,  arose  on  the  additional 
legacy  given  on  a  condition  of  marriage  with  consent ;  it  is  a  direct  authority 
for  supporting  a  condition  of  marriage  precedent,  without  a  devise  over,  and 
in  the  case  of  personalty,  for  the  legacy  was  primarily  chargeable  on  the  per- 
sonal estate.  The  next  authority  is  the  great  case  of  lie rvey  v.  Aston,  decided 
in  1737  or  1738,  and  first  heard  by  Sir  Joseph  Jekyll,  whose  judgment  is  re- 
ported by  Mr.  Forrester,  Ca.  t.  Talb.  212.  He  decided  that  the  condition, 
which  was  precedent,  was  only  in  terrorem,  both  as  to  the  portion  out  of  land 
and  the  money  legacy.  The  case  was  brought  by  appeal  before  Lord  Ilard- 
wicke,  who  called  in  the  assistance  of  the  Lord  Chief  Justices  Lee  and  Willes 
and  Mr.  Justice  Comyns.     There  is  a  full  report  of  the  argument  in  1  Atk. 

361.  Lord  Chief  *Baron  Comyns'  argument  is  reported  by  himself; 
'-  -'  Mr.  Joddrell's  MS.  contains  the  completest  account  of  Lord  Hard- 
wicke's  argument;  and  far  the  best  account  of  the  Chief  Justice's,  is  a  MS. 
report  which  I  have  been  favored  with  by  3Ir.  Sergeant  Hill.  Sir  Joseph 
Jekyll's  argument  is  against  the  effect  of  conditions  precedent;  nor  will  Lord 
liardwicke's  reversal  make  for  me,  as  he  decided  on  the  distinction  between 
land  and  money,  and  held  the  money  legacy  to  be  governed  by  a  reference  to 
the  portion.  But  all  his  Lordship's  accessors  were  of  opinion  with  me.  Lord 
Chief  Baron  Comyns  thought  the  condition  effectual  as  to  the  money  legacy, 
and  relied  on  the  case  of  Crcdgh  v.  Wilso7i;  and  his  short  note  of  the  case  in 
the  margin  makes  the  point  determined  a  general  one  as  to  money  legacies  as 
well  as  portions  out  of  land.  The  Chief  Justices  concurred  in  thinking  the 
precedent  condition  effectual  with  respect  to  the  money  legacy,  independently 
of  its  being  mixed  with  the  portion  out  of  land.     In  Manscll  v,  Mansell,  the 


SCOTT     V.     TYLER.  363 


Lords  Commissioners  held  a  precedent  condition  annexed  to  a  power  of  join- 
turing to  be  effectual,  and  laid  great  stress  on  the  general  doctrine  as  to  con- 
ditions precedent.  An  expression  of  Lord  Mansfield,  in  Ambrose  v.  Ashbi/, 
4  Burr.  1929 ;  1  W.  BI.  Rep.  607,  upon  Hervey  v.  Aston,  being  cited,  his 
Lordship  said,  "That  was  a  condition  precedent,  and,  therefore,  the  estate 
never  vested ;  and,  in  chancery,  it  is  held,  that  subsequent  conditions  of  for- 
feiture, in  restraint  of  marriage,  are  only  in  terrorem,  unless  there  is  a  devise 
over."  This  amounts  to  an  opinion,  that  where  the  condition  is  precedent, 
it  is  effectual  without  a  devise  over.  Another  authority  remains,  from  what 
fell  from  Lord  Loughborough,  in  Hemmings  v.  Mmildey,  1  Bro.  C.  C.  304. 
The  words  are  few,  but  import  an  opinion,  that  the  condition,  being  precedent, 
was  sufficient  to  make  it  effectual.  I  do  not  rest  much  upon  it,  because  in 
fact  there  was  a  devise  over  before  the  Court,  and  it  is  not  quite  certain  that 
the  Court  meant  to  decide  independently  of  that  circumstance.  These  are 
the  authorities  which  oppose  the  doctrine  of  Lord  Hardwicke,  Sir  Joseph 
Jekyll,  and  Lord  Chief  Baron  *Parker,  and  though  they  were  few, 
might  justify  your  Lordship  in  overruling  this  determination.  The  L  -• 
balance  is  vastly  in  favor  of  the  proposition,  that  where  the  condition  of  mar- 
riage is- precedent,  it  is  effectual  in  case  of  a  money  legacy  without  a  devise 
over.  Upon  the  whole  I  cannot  but  suspect  that  Lord  Hardwicke  fell  into  a 
mistake  on  the  subject,  by  supposing  many  of  the  cases  to  have  been  on  con- 
ditions precedent,  which  really  turned  on  conditions  subsequent.  Those  cases 
are  many  in  number.  I  will  only  refer  to  them  in  the  order  of  time  :  Yelver- 
ton  V.  Newijort,  Tothill,  226,  is  the  oldest  case  in  Chancery  on  a  marriage 
condition;  Pigot's  case,  cited  by  Winch,  Moore,  857,  as  a  sentence  of  the 
Ecclesiastical  Court :  Norwood  v.  Norwood,  1  Ch.  Rep.  121 ;   Vintner  v.  Pixj 

1  Ch.  Rep.  121;  Toth.  227;  BeUasis  v.  Ermine,  1  Ch.  Ca.  22;  Freem.  Ch. 
Rep.  171 ;  Fleming  v.  Wnlgrave,  1  Ch.  Ca.  58;  Anon.,  1  Freem.  302;  Right- 
son  V.  Overton,  Freem.  Ch.  Rep.  20;  Hicks  y.  Pendarvis,  Freem.  Ch.  Rep. 
41 ;  a  case  put  by  Lord  Nottingham,  in  Jervois  v.  Duke,  1  Ven.  19 ;  Lord 
Salisbury's  case,  2  Vent.  365;  2  Vern.  223;  Skin.  285;    Garrett  v.  Pretty, 

2  Vern,  293  ;  SemphiU  v.  Baily,  Prec.  Ch.  562.  In  all  these  cases,  although 
at  first  sight  the  conditions  appear  to  have  been  precedent,  yet  on  a  closer 
view  they  were  all  considered  as  conditions  subsequent.  This  will  particularly 
appear  by  considering  the  case  of  BeHasis  v.  Ermine,  which  is  considered  as 
the  leading  case,  for  requiring  a  devise  over,  on  a  condition  precedent ;  yet, 
according  to  the  authorities  as  they  stood  in  the  time  of  Lord  Hardwicke,  and 
to  the  strict  language  of  the  bequest,  the  condition  is  subsequent,  there  being 
an  immediate  legacy  by  the  first  words,  and  the  condition  following  afterwards- 
This  construction  was  given  to  a  legacy  of  the  same  kind  by  Sir  Joseph  Jekyll, 
Peyton  v.  Bury,  2  P.  Wms.  626.  It  is  true,  in  Elton  v.  Elton,  1  Ves.  4, 
(reported  also  in  Mr.  Joddrell's  MS.)  Lord  Hardwicke  would  not  allow  legacies 
so  expressed  to  be  vested,  though  the  legatee  was  a  grandchild ;  but  it  is  suffi- 
cient if  the  current  of  old  cases  considered  them  as  vested,  for  if  so,  I  believe 


364  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 


it  will  be  found,  that  the  cases  on  which  Lord  *Hardwicke  formed 
["^140]  j^jg  opinion,  that  the  doctrine  of  in  terrorem  governs  conditions  prece- 
dent as  well  as  subsequent,  will  be  found  to  be  cases  of  condition  subsequent, 
and  if  so,  it  will  leave  Sir  Joseph  Jekyll's  opinion  alone  in  favor  of  the  plain- 
tiff. 

2nd,  The  second  ground  upon  which  I  argue,  that  the  present  condition  is 
effectual,  is  that  the  general  residuary  devise  over  is  a  sufficient  devise  for  that 
purpose. 

I  admit  that  the  authorities  of  Sir  Joseph  Jekyll  and  Lord  Hardwicke  are 
against  me  upon  this  point.     The  former,  in  Patjet  v.  ITaijicood,  cited  1  Atk. 
378,  denied  to  a  general  devise  of  the  residue  the  effect  of  a  devise  over.     In 
Hercei/  v.  Aston,  Lord  Hardwicke  seems  to  have  avoided  deciding  this  point; 
but,  in  Wheeler  v.  Birigham,  he  appears  to  have  been  of  opinion  that  it  must 
be  a  special  bequest,  on  failure  of  the  event.     There  are  also  some  earlier 
authorities  the  same  way,  as  Garrett  v.  Pritty,  2  Vern.  293 ;  and  Semfhill  v. 
Ba'du,  Prec.  Ch.  5G2.     Yet  there  are  very  strong  authorities  on  the  other  side ; 
the  first  of  these  is  Lady  Kilmorei/' s  case,  cited  by  Lord  Nottingham,  in  Parker 
V.  Parker,  Freem.  Ch.  Rep.  59,  a  legacy  of  £1000  each  to  daughters,  if  they 
married  with  consent  of  a  person  named;  and  if  they  married  without,  they 
were  to  have  only  £500  each,  and  the  residue  Avas  given  to  the  son.     The 
daughters  being  thirty  years  of  age,  sued  in  chancery  for  their  legacies,  but 
the  Court  would  not  decree  them  without  security  given  to  refund  on  marry- 
ing without  consent.     But  this,  I  confess,  is  not  a  clear  case,  as  to  its  being 
a  residue,  and  not  a  devise  over,  though  it  should  seem  the  former.     The 
next,  Amos  v.  Horner,  1  Eq.  Ca.  Ab.  112,  is  a  complete  decision  upon  a 
general  residuary  bequest.     A  legacy  to  a  daughter  of  £100,  payable  on  mar- 
riage with  consent,  or  at  twenty-five  ;  and  if  she  married  without  consent,  £50, 
and  no  more,  the  residue  to  the  defendant;  the  daughter  marrying  without 
consent,  under  twenty-one.  Sir  John  Trevor  held  the  devise  of  the  surplus  of 
the  estate  to  be  a  devise  over  of  the  £50.     This  case  was  refused  as  an  autho- 
rity, by  Sir  Joseph  Jekyll,  because  no  decree  was  to  be  found  in  *the 
L         J    Register's  book;  but  Lord  Chief  Justice  Willes,  in  Hervey  v.  Aston, 
said  it  appeared  by  the  calendar  that  a  decree  was  made ;  and  it  appears  that 
he  was  of  opinion  that  the  residuary  bequest  was  a  sufficient  devise  over.     Upon 
this  contrariety  of  authorities,  your  Lordship  will  be  justified  in  deciding  this 
point  according  to  the  reason  of  the  thing  and  the  real  intention  of  the  testator. 

The  nature  of  a  residuary  bequest  is  to  vest  in  the  legatee  all  the  property 
of  the  testator  not  otherwise  disposed  of;  therefore  it  is  that  lapsed  legacies  of 
personalty  fall  into  the  residuum,  which  seems  once  not  to  have  been  allowed  : 
Sprvjff  V.  Sjyrigg,  2  Vern.  394 ;  at  least,  if  the  legatee  was  dead  at  the  time  of 
making  the  will.  Rut  the  doctrine  is  now  settled  in  favor  of  residuary  lega- 
tees :  Wright  V.  Had,  Fortescuc,  1H2.  Therefore,  in  Durour  v.  Mottcux,  1 
Vcs.  320,  Lord  Hardwicke  decided  in  favor  of  the  residuary  legatee  on  a  legacy 
void  by  the  Statute  of  Mortmain.  The  residuary  bequest,  in  the  present  case, 
is  in  the  fullest  and  completest  terms  possible ;  it  extends  both  to  the  real  and 


SCOTT     V.     TYLER.  365 


personal  estate,  and  gives  a  particular  reason  for  making  lier  the  hteres  factus 
and  universal  legatory  of  his  estate,  subject  to  the  former  devises  in  his  will. 
If  the  condition  annexed  to  Mrs.  Scott's  legacy  had  been  any  other  than  mar- 
riage with  consent,  there  could  not  have  been  a  doubt  on  its  failure,  of  Mrs. 
Tyler's  title,  the  intent  being  sufficiently  clear;  and  if  so,  why  should  any 
stronger  evidence  of  intent  be  required  on  a  condition  of  marrying  with  con- 
sent, than  of  living  to  a  particular  age,  or  any  other  contingency  ?  But  it 
may  be  said-,  that  a  special  devise  over  effectuates  a  marriage  condition,  not 
by  being  an  expression  of  intention,  but  by  creating  an  interest  in  a  third 
person  ;  and  this  is  Lord  Hardwicke's  method  of  accounting  for  it  in  Wheeler 
V.  Blnglidm,  3  Atk.  367;  but  the  residuary  legatee  is  equally  interested  with 
any  special  devisee  over.  In  both  cases,  the  interest  of  the  third  person  is 
equally  at  stake ;  the  only  difference  is,  that  the  interest  of  the  one  is  created 
by  general  words,  the  other  by  a  special  limitation. 

*3rd,  The  third  point  I  made  was,  that  this  is  not  the  case  of  a 
direct  legacy,  but  of  a  trust.  The  Court  will  consider  whether,  being  L  ''^ 
such,  it  is  at  all  within  the  sphere  of  the  ecclesiastical  jurisdiction.  If  it  is  not, 
the  foundation  on  which  the  doctrine  of  in  terrorem  stands  is  wanting,  and  it 
becomes  the  subject  of  quite  a  different  rule,  under  which  laud,  portions  out 
of  land,  powers  over  land,  and  money  legacies,  having  a  reference  to  a  devise 
of  land,  are  exempted  from  the  doctrine.  There  was  a  case  before  Lord  Hard- 
wicke,  of  Redely  v.  Colson,  which  I  have  referred  to  before,  which  went  off; 
but  Lord  Hardwicke  expressed  a  doubt,  in  respect  to  its  being  a  trust,  whether 
it  was  not  exempted  from  the  rule. 

Upon  the  whole,  Mr.  and  Mrs.  Scott  fail  in  making  out  their  title  to  any 
part  of  the  legacy  of  £10,000,  Mrs.  Scott  having  married  under  twenty-one, 
without  the  consent  of  her  mother,  which  was  made  essential  by  Mr.  Kee's 
will.  The  only  ground  for  avoiding  the  contingency  is,  that  it  is  a  condition 
in  restraint  of  marriage,  and  therefore  only  in  terrorem.  In  answer  to  this, 
I  have  endeavored  to  show  that  the  doctrine  is  mistaken,  or  at  most,  does 
not  apply  to  conditions  precedent;  that  if  a  devise  over  is  necessary  to  defend 
a  condition  precedent,  as  well  as  a  condition  subsequent,  the  residuary  bequest 
amounts  to  such  a  devise  over. 

Lastly,  I  have  submitted  whether  a  trust  is  not  exempted  from  this  supposed 
rule  of  the  ecclesiastical  jurisdiction  ;  I  have  only  to  add,  that  the  present  case 
is  favorable  to  the  validity  of  the  condition,  as  it  comes  from  a  father  to  a 
child;  is  exacted  only  whilst  the  legatee  is  under  twenty-one;  as  the  power  is 
vested  in  the  parent;  that  the  power  has  not  been  abused,  and  it  is  not  a  case 
where  the  child  loses  her  whole  provision,  there  being  a  considerable  portion 
for  her,  which  is  not  affected  by  the  condition. 

Mr.  Stainshy  (as  amicus  curiae)  referred  the  Court  to  the  case  in  Dyer,  189,  b, 

{Butler  V.  Lady  Bray,)  which  he  said  was  cited  in   Manscll  v.   JIansell,  by 

Sir  John  Skynner,  *then  the  iunior  counsel  in  the  cause,  and. was      ,,  ,„^ 

.  r  1431 

thought  so  important  by  the  Court,  that  the  cause  was  ordered  to    '-         -• 


366  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 

stand  over  till  the  next  day,  in  order  that  Mr.  Ilenhy,  the  Attorney-General, 
might  answer  it. 

Mr.  Pluvier,  on  the  same  side. — The  question  in  this  cause  brings  two 
points  under  discussion.  1st,  The  intention  of  the  testator,  independent  of 
the  authorities  on  the  subject.  2nd,  The  construction  of  the  will  upon  the 
ground  of  the  authorities. 

The  only  question  now  is,  as  to  INIrs.  Scott's  claim  under  the  will.  She 
stands  in  the  light  of  a  particular  legatee  taking  this  legacy  out  of  the  general 
fund;  to  do  this,  she  must  show  the  intention  of  the  testator  in  her  favor, 
either  by  express  words  or  by  implication.  In  the  present  case,  it  is  not 
claimed  as  given  in  express  terms;  and  it  does  not  appear  by  implication  that 
she  was  to  have  it  in  the  event,  which  has  happened,  of  her  being  married 
under  twenty-one  without  her  mother's  consent.  The  legacy  is  given  to  an 
infant  twelve  years  of  age.  The  testator  had  a  son-in-law  and  a  grandson ; 
and  he  gives  to  the  present  plaintiff  other  provisions,  without  any  conditions, 
except  attaining  twenty-one  years  of  age,  by  which  she  is  amply  provided  for 
— a  real  estate  of  £150  a-year,  and  a  contingent  interest  in  £5000  given  by 
the  testator  to  Dryer,  the  grandson,  on  his  dying  under  age,  which  is  a  very 
ample  provision  for  a  child  under  the  circumstances  of  the  plaintiff.  The  tes- 
tator had  not  affixed  any  condition  or  restriction  as  to  marriage,  to  the  gift  of 
the  £5000  to  his  grandson  Dryer;  but,  when  he  was  giving  this  £10,000  to 
an  infant,  in  augmentation  of  the  fortune  already  provided  for  her,  he  might 
think  it  very  reasonable  to  give  it  her  with  a  restriction  respecting  marriage; 
it  might  be  very  detrimental  to  the  daughter  herself  not  to  be  restrained  in  a 
matter  of  so  much  importance.  The  testator  knew  how  to  qualify  his  gift  in 
the  one  case,  and  to  leave  it  unqualified  in  another,  where  he  thought  it  un- 
necessary. In  respect  of  this  child,  he  makes  no  disposition  till  she  attains 
twenty-one  years  of  age  ;  then,  in  order  to  entitle  herself  to  the  *legacy, 
L  -■  she  must  do  one  of  two  things;  she  must  either  postpone  her  mar- 
riage till  twenty-five,  or,  if  she  marries  under  twenty-one,  she  must  do  so  with 
her  mother's  consent.  This  is  a  reasonable  restraint,  such  as  the  law  itself 
imposed  upon  her,  and  such  as  many  celebrated  writers  think  imposed  upon 
her  by  nature.  The  whole  devise  is  in  one  sentence;  one  moiety  is  to  be  paid 
to  her  at  twenty-one,  if  unmarried,  the  other  at  twenty-five,  if  then  unmarried. 
If  the  testator  had  made  no  further  disposition,  it  would  be  clear  that  the 
lecacy  was  not  given  absolutely,  for  she  is  not  to  take  it  unless  she  is  un- 
married. But  he  then  says,  (going  upon  the  ground  of  the  former  prohibi- 
tion,) that,  in  case  she  should  marry  under  twenty-one,  it  must  be  with  the 
consent  of  her  mother.  The  condition  he  looked  forward  to  was  marriage; 
the  first  part  of  his  will  contains  a  prohibition  of  marriage  till  twenty-five; 
the  latter  lessens  that  restraint  to  twenty-one,  with  consent.  By  marrying 
under  twenty-one,  without  consent,  she  has  departed  from  the  lesser  restraint, 
and  disqualified  herself  from  the  additional  bounty  to  which  she  had  no  title 
but  upon  the  performance  of  the  condition.  The  only  way  the  case  can  be 
argued  in  her  favor  is,  that  this  restriction  was  not  a  condition,  but  a  recom- 


SCOTT    V.     TYLER,  367 


mendation,  becase  the  legacy  is  not  given  over;  and  although  it  is  given  over 
in  case  of  her  dying  unmarried  under  twenty-five  years  of  age,  that  it  is  not 
so  in  any  other  event ;  the  construction  that  it  was  recommendatory  is  not 
maintained  by  the  will ;  it  might  as  well  be  contended  that  marriage  itself  was 
not  necessary,  as  that  it  was  not  to  be  with  consent.  The  principal  intent  as 
to  marriage  was  to  postpone  it  till  twenty-five;  your  Lordship,  will  not,  there- 
fore, admit  that  conjecture  into  the  construction  of  the  will.  The  assertion 
that  it  is  not  given  over  on  marriage  without  consent  is  a  mere  fallacy,  founded 
on  a  supposition  that  whatever  is  not  given  away  is  given  to  the  plaintifi" 
who  is  only  a  particular  legatee ;  for,  in  truth,  whatever  is  not  given  away 
goes  to  the  residuary  legatee.  But  they  argue,  that  being  given  to  her  in 
one  event  it  is  not  so  in  any  other  ;  *which  is  a  mistake,  as  Mrs.  Tyler  r^-,  ,  --, 
does  not  claim  as  a  particular  legatee,  but  as  general  legatee ;  therefore,  ^  -' 
if  anything  is  not  disposed  of  from  her,  it  is  given  to  her.  It  is  by  no  means 
incompatible  that  it  should  be  given  to  Mrs.  Tyler  in  case  of  the  plaintiff  dyino- 
unmarried,  and  also  in  case  she  should  marry  without  consent ;  but  to  give  it  to 
Mrs.  Scott,  if  she  marries  without  consent,  is  inconsistent  with  givino-  it  to  heron 
condition  of  marrying  with  consent,  and  would  destroy  a  principal  object  of 
the  testator's  intention.  Mrs.  Scott  is  therefore  not  entitled  to  take  on  the 
ground  of  the  testator's  intention. 

When  I  call  this  condition  a  restraint,  I  am  probably  wrong,  for  I  may  as 
well  call  it  a  condition  in  encouragement  of  marriage ;  if  the  condition  had 
stopped  in  its  first  part,  it  would  have  been  a  restraint,  for  the  plaintiff  in  that 
case  could  not  have  married  until  twenty-five ;  then  permitting  her  to  marry 
under  that  age  is  an  encouragement  to  marriage ;  but  to  say  because  it  is  a 
condition  in  encouragement  of  marriage,  it  shall  be  construed  as  an  absolute 
gift  immediately  upon  marriage,  is  not  arguing  justly.  The  condition  annexed 
has  nothing  in  it  to  engage  a  wish  to  set  it  aside.  The  intention  of  the  testa- 
tor is  legal;  imposes  nothing  but  what  the  law  itself  imposes;  it  ought,  there- 
fore, to  prevail ;  and  if  it  does,  the  plaintiff  does  not  make  out  the  proposition, 
that  there  is,  in  the  event  that  has  happened,  an  intent,  either  expressed  or 
implied,  that  she  shall  take  the  additional  legacy  of  £10,000  given  in  the 
will. 

Secondly.  Suppose  the  intent  to  be  clear,  that,  in  the  events  which  have 
happened,  the  plaintiff  is  not  entitled  to  take  the  legacy,  the  authorities  ought 
to  be  very  strong  to  induce  the  Court  to  contradict  that  intent. 

All  the  authorities  upon  the  subject  are  bottomed  on  the  civil  law. 

In  cases  not  within  the  ecclesiastical  jurisdiction,  the  civil  law  has  not  been 
adopted  as  the  rule,  as  in  the  cases  of  settlements  of  land,  or  of  money  to  be 
raised  out  of  land ;  in  these  the  condition  has  been  held  good ;  from  whence  it 
follows  that  the  condition  in  its  own  nature  is  *just  and  legal,  other- 
wise it  must  fail  universally.  Neither  is  the  rule  adopted  fn  the  case  L*!^^] 
of  pecuniary  legacies,  where  there  is  a  limitation  over,  or  in  the  case  where 
there  is  an  alternative  provision  where  it  only  notifies  the  testator's  intention. 
It  follows,  therefore,  that  where  the  intention  is  clear  to  the  contrary,  the  rule 


368  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 


does  not  apply.  Another  proposition  also  arises  from  the  cases  ;  the  only  ones 
which  apply  arc  those  of  money  legacies  upon  conditions  precedent.  If  the 
doctrine  laid  down  by  Lord  Chief  Baron  Comyns  and  the  Chief  Justices,  in 
their  argument  in  Hervey  v.  Aston,  is  right,  those  even  do  not  apply,  if  the 
intention  appear  to  the  contrary,  although  there  is  neither  a  remainder  over, 
nor  an  alternative  provision ;  this  is  expressly  laid  down  by  Chief  Baron  Co- 
myns. 

In  adopting  the  rule  of  the  civil  law,  your  Lordship  will  inquire  what  that 
rule  is;  and  it  appears  that  it  is  not  a  deduction  from  principles,  but  merely  a 
part  of  the  Lex  Scripta,  the  Lex  Papia-poppfca.  This  rule  makes  the  con- 
dition unlawful,  and  counteracts  two  principles  adopted  by  our  law :  it  makes 
the  condition  unlawful  which  by  our  law  is  legal,  and  it  gives  the  legacy; 
whereas  our  law  annuls  the  legacy  given  on  an  unlawful  condition.  Will  this 
Court  adopt  a  part  of  the  Lex  Scripta  of  Rome,  made  under  the  particular 
circumstances  of  the  times,  against  the  clear  principles  of  our  own  law  ?  It 
was  a  part  of  this  law,  that  a  man  who  had  but  one  child  should  take  but  half 
of  a  legacy.  Will  the  Court  adopt  a  part  of  the  law,  and  reject  the  other? 
Where  is  the  propriety  of  making  a  positive  law  of  Home,  a  rule  of  construc- 
tion of  a  will  here  ?  How  can  it  constitute  a  rule  for  discovering  a  testator's 
intention  ?  Perhaps,  however,  after  the  determinations  which  have  passed,  it 
would  be  presumptuous  to  say  the  Court  should  not  at  all  refer  to  it.  But  if 
the  Court  feels  itself  obliged  to  consider  it  as  a  subsisting  rule  as  to  those  cases 
which  fall  within  it,  I  trust  your  Lordship  will  not  extend  it  farther  than  it 
has  hitherto  prevailed ;  if  the  case  before  you  could  not,  from  its  nature,  be  of 
ecclesiastical  cognizance,  or  enter  under  that  jurisdiction,  the  rule  does  not 

apply-  .  . 

^  *The  present  case  is  not  a  bill  for  the  payment  of  a  legacy;  it  is  a 

'-  bill  filed  for  carrying  into  execution  a  trust;  the  legal  fund  is  vested 

in  the  trustees;  the  J]cclesiastical  Court  cannot  compel  the  execution  of  the 
trust,  it  can  only  give  the  legacy  to  the  nominal  trustee.  The  trust,  then,  is 
the  subject  of  the  appropriate  jurisdiction  of  this  Court;  the  bill  is  to  compel 
the  mother  to  dictate  the  words  of  the  settlement,  as  to  a  moiety  of  the  legacy, 
which  the  Ecclesiastical  Court  could  not  do :  if  they  had  attempted  it,  this 
Court  would  have  restrained  them  by  injunction.  Tliis  appears  from  Anon., 
1  Atk.  491,  where  it  is  laid  down  by  Lord  Hardwicke,  that  notwithstanding 
the  original  jurisdiction  of  the  Ecclesiastical  Court  in  legacies,  yet,  if  there  be 
a  trust,  this  Court  will  grant  an  injunction,  trusts  hcin<j  only  proper  for  the 
cognizance  of  this  Court. 

The  Court,  therefore,  in  a  matter  of  trust,  is  not  bound  by  the  rule  of  the 
civil  law.  This  is  the  first  case  on  the  subject  of  a  trust  fund.  In  the  case 
of  land,  or  portions  charged  ypon  land,  the  rule  has  been  held  not  to  apply ; 
so,  also,  it  has  been  held  in  personal  legacies  under  certain  circumstances. 
Will  your  Lordship,  then,  conform  to  the  general  rule  of  this  Court,  agreeable 
to  the  law  of  England ;  or  adopt  the  rule  of  the  civil  law,  made  under  partial 
circumstances,  when  the  question  is,  which  of  these  rules  shall  be  applied  to 


SCOTT     V.     TYLER.  369 


a  new  set  of  cases  upon  which  there  is  hitherto  no  determination  ?  But  even 
admitting  that  the  rule  of  the  civil  law  is  to  prevail,  the  rule  of  that  law  would, 
in  this  case,  not  be  to  avoid,  but  to  give  effect  to  the  restraint.  The  case  here 
is  that  of  a  parent.  The  case  in  the  Roman  law  is  the  consent  of  a  stranger; 
so  it  was  also  in  the  cases  of  Underwood  v.  Morris,  and  in  Rcynish  v.  Martin. 
The  civil  law  required  the  consent  of  the  parents  in  all  marriages :  Dig.  1.  23, 
tit.  2,  1,  2, — nuptiae  consistere  non  possunt  nisi  consentiant  omnes;  id  est,  qui 
cocunt,  quorumque  in  potestate  sunt.  And  it  appears,  by  Dig.  22,  tit.  2,  1. 
62,  that  the  father  might  delegate  this  authority  to  the  mother ;  and  if  she 
unjustly  withdrew  her  consent,  the  praetor  might  compel  her  to  *give  r»=i^QT 
it :  Dig.  23,  tit.  2,  1.  19.  The  restraint  imposed  here  is,  therefore,  '-  '  ^ 
only  of  the  same  kind  with  that  which  the  civil  law  recognized.  It  is  limited 
to  twenty-one,  which  is  acknowledged  by  Swinburne,  153,  to  be  good  :  "  Albeit 
all  these  conditions  are  generally  disliked ;  where  they  are  part  restrained,  as 
that  the  daughter  shall  not  marry  under  twenty,  the  condition  is  not  void." 
The  case  there  put  is  stronger  than  the  present :  there  the  restraint  is  absolute, 
— here  only  to  restrain  without  consent.  The  civil  law  would,  therefore,  give 
effect  to,  not  control,  the  present  restraint.  The  cases  do  not  militate  with 
this  doctrine ;  many  of  them  turn  upon  the  special  manner  in  which  they  are 
penned ;  several  of  them  are  upon  conditions  subsequent.  In  Underwood  v, 
Morris,  and  Reynish  v.  Martin,  the  restraint  is  unlimited,  and  given  to  stran- 
gers;  the  former  of  them  is  directly  contradicted  by  Ilemmings  v.  Munhleij  ; 
and  there  is  no  one  of  the  cases  which,  if  all  the  facts  are  taken  into  conside- 
ration, contradicts  the  doctrine  now  laid  down. 

Mr.  Stratford,  on  the  same  side. — This  case  has  been  argued  on  the  part 
of  the  plaintiff,  on  the  ground  of  two  principles,  both  drawn  from  the  civil, 
and,  as  it  is  alleged,  adopted  by  our  law : — 

1st,  That  all  conditions  in  restraint  of  marriage  are  void. 
2d,  That  conditions  annexed  to  legacies  of  marrying  with  consent  are 
where  the  legacies  are  not  specifically  given  over,  to  be  held  in  terrorem  only 
and  not  necessary  to  be  performed.  ' 

With  respect  to  the  first  of  these  principles,  it  is  not  to  be  maintained 
taking  it  in  a  general,  universal,  and  unqualified  sense,  but  only  when  it  is 
taken  sub  modo ;  and  therefore,  in  the  same  book  in  which  it  is  said,  "  that 
all  conditions  against  the  liberty  of  marriage  are  unlawful,"  it  is  also  added, 
"  but  if  the  conditions  are  only  such  as  whereby  a  marriage  is  not  absolutely 
prohibited,  but  only  in  part  restrained,  as  in  respect  of  time,  place,  or  person, 
then  such  conditions  are  not  utterly  to  be  rejected :"  Godol.  Orph.  Leg.  45 
c.  15,  s.  1.  The  reason  of  which  *seems  to  be,  because  none  of  these  |-;^i_,q-, 
conditions  impose  celibacy  upon  the  party,  altogether  and  at  all  events ;  '-  -■ 
for,  though  the  marriage  may  not  be  had  at  this  particular  time  or  place,  or 
with  this  particular  person,  yet  it  may  at  some  other,  &c. 

The  question,  therefore,  in  all  these  cases  must  be,  whether  the  restraint 
imposed  be  reasonable  or  not. 

In  the  present  case,  if  the  restraint  be  unreasonable,  it  must  be  so  either  as 
VOL.  II. — 24 


370  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 

applied  to  the  person  to  whom  the  power  of  restraining  is  given,  or  to  the  length 
of  time  for  which  such  power  is  given.  As  to  the  person,  the  power  is  given 
to  the  mother  of  the  legatee;  and  as  to  the  time  it  can  in  no  event  continue 
longer  than  till  the  legatee  attains  the  age  of  twenty-five  years. 

It  were  needless  to  state  particularly  the  power  which  the  Roman  law  gave 
to  the  parent  over  the  child  in  cases  of  marriage.  Many  passages  have  been 
cited  from  the  civil  lawyers,  and  many  more  might  be,  to  show  that  no  mar- 
riage could  stand  without  the  previous  consent  of  the  parent,  (where  there  was 
one,)  and  the  child  was  not  emancipated.  Among  others,  it  is  said  in  the 
Digest — In  tautum,  (speaking  of  marriage,)  jussus  parentis  pr?ecedere  debet. 
But  it  is  said  that  this  authority  resided  in  the  father  only,  and  not  in  the 
mother,  and  that  it  was  part  of  the  patria  potestas.  In  answer  to  this  it  is  to 
be  observed,  that  the  civil  law,  as  it  appears  to  be  adopted  in  our  ecclesiastical 
law  respecting  marriages,  gives  an  equal  power  of  consenting  to  the  mother  as 
to  the  father.  Thus  it  is  expressly  decided  by  the  canons  of  1603,  that  no 
children  under  the  age  of  twenty-one  complete,  should  contract  themselves  or 
marry  without  the  consent  of  their  parents  (in  the  plural  number,)  or  guar- 
dians and  governors,  if  their  parents  be  deceased.  These  are  the  words  of 
the  hundredth  canon,  and  by  the  Act  of  the  26th  Geo.  2,  c.  33,  it  is  ex- 
pressly enacted,  that  the  consent  of  the  mother  shall  be  as  necessary  as  that  of 
the  father  was,  if  the  father  be  dead  and  there  be  no  guardian. 

The  length  of  time  during  which  the  restraint  may  in  this  individual  case 
last,  does  not  much  exceed  the  time  *given  to  parents  by  the  Act  of 
[*150]  ^j^g  26th  of  Geo.  2,  c.  33,  universally.  And  though  the  testator  has 
in  this  case  by  his  will  mentioned  a  time,  viz.,  the  age  of  twenty-five,  to  the 
extent  of  which  the  marriage  of  the  legatee  might  by  possibility  have  been 
restrained,  yet  he  has  by  the  same  will  held  out  inducements  to  an  earlier 
marriao-e,  provided  it  be  a  marriage  with  consent;  and  he  has  not  impeded 
any  marriage  whatever  after  the  age  of  twenty-five  years. 

There  is  no  case  to  be  found  in  which  it  has  been  said  what  should  be  a 
reasonable  restraint  in  regard  to  the  time  it  is  to  continue ;  but  from  what  is 
said  in  Aston  v.  Aston,  2  Vern.  452,  it  should  seem  that  though  no  time  be 
limited,  the  restraint  is  not  unreasonable — that  is,  so  as  to  avoid  the  condition. 

If  the  legacy  in  this  case  had  been  given  to  the  legatee  at  the  age  of  twenty- 
five  years,  if  she  teas  then  sole  and  tmmarned,  it  would  at  least  have  been 
questionable  whether  by  such  a  bequest  a  certain  character  and  description  of 
person  was  not  imposed  upon  the  legatee,  which  it  would  be  necessary  for 
her  to  sustain  at  that  age,  and  without  which  she  could  not  be  entitled ;  and 
yet  in  such  a  case  marriage  would  be  as  much  impeded  as  in  the  present.  In 
this  view  of  the  case  another  ground  of  argument  arises  on  the  part  of  the 
defendant.  In  the  common  ^asc  of  a  legacy  of  personal  estate,  given  to  a  per- 
son of  twenty-one,  it  was  expressly  said  by  the  Court,  in  pronouncing  judg- 
ment in  Dawson  v.  Killetl,  1  Bro.  C.  C.  123,  it  makes  such  a  description  of 
the  person,  that,  if  the  person  does  not  sustain  the  character  at  the  time,  the 
legacy  will  fail.    I  do  not  cite  this  case  as  being  in  point  to  the  present,  (though 


SCOTT     V.     TYLER.  371 

that  was  a  case  upon  a  personal  legacy,  whether  vested  or  not,)  but  merely  for 
the  passage  alluded  to  in  the  judgment  which  was  pronounced  on  considera- 
tion. 

If  it  be  true,  then,  that  the  words  of  the  bequest  do  in  this  case  describe  the 
qualification  and  character  of  a  person  under  which  the  legatee  is  to  take,  a 
condition  arises  which,  accordino-  to  what  is  said  by  Lord  Cowper  *in  ^ 
the  case  of  Creagh  v.  Wilson,  2  Vern.  o72,  is  in  the  nature  of  a  con-  L  -' 
dition  precedent,  and  must  be  performed  before  the  legatee  can  be  entitled. 
To  what  is  said  by  Lord  Cowper  in  this  case  of  Creagh  v.  Wilson,  may  be 
added  what  is  said  by  the  Lords  Commissioners  Willes  and  Wilmot,  in  the 
case  of  Mansell  v.  Mansill,^  (24th  February,  1757,)  which  case  seems  much 
in  point  with  the  present  one,  as  to  the  principle  at  least  upon  which  the 
question  now  to  be  stated  was  determined.     The  case  was  this : — 

Sir  Edward  Vaughan  Mansell  being  seised  in  fee  of  lands,  &c.,  by  his  will 
devised  as  follows  : — 

"I  give  and  devise  all  my  estates,  lands,  tenements,  and  hereditaments  to 
my  wife,  Mary  Mansell,  for  ever,  and  will  that  she  shall  be  directed  and 
governed  by  John  Yaughan,  Esq.,  and  Morgan  Davis,  gent.,  and  their  heirs, 
in  the  management  of  her  concerns,  whom  I  appoint  and  institute  trustees  of 
this  my  will,  to  act  for  her  and  my  children's  interest  as  hereinafter  men- 
tioned ;  and  after  my  wife's  decease,  I  give  and  devise  all  my  lands,  &c.,  to 
my  son  Edward  Mansell  for  the  term  of  his  natural  life;  and  I  will  that  he 
shall  be  capable,  with  the  consent  of  the  said  trustees,  to  settle  a  jointure  on  the 
woman  they  agree  to  in  writing  he  should  marry  ;  and  from  and  after  his  de- 
cease to  his  first  and  other  sons,"  &c. 

There  was  also  in  the  will  the  like  limitation  to  Rawleigh  Mansell,  the  tes- 
tator's second  son,  with  remainder  to  his  first  and  other  sons,  &c.,  and  the  same 
power  of  jointuring. 

The  testator  died  in  1720,  leaving  his  eldest  son  Edward  thirty  years  of  age 
and  married :  and  the  trustees  were  sixty  years  old  and  upwards. 

In  the  year  1740,  the  lady  of  Sir  Edward  Vaughan  Mansell,  the  devisee  for 
life,  being  dead,  and  the  trustees  also  being  both  dead,  Davis  being  the  sur- 
vivor, and  leaving  a  son  and  heir-at-law,  Edward  Mansell,  then  Sir  Edward 
Mansell,  and  who  was  at  that  time  a  widower,  married  Lady  Mansell,  (the 
plaintiff  in  the  cause)  and  by  deed  settled  the  whole  estate  devised  to  him  by 
his  father's  *will  upon  her,  by  way  of  jointure,  without  any  consent 
obtained  of  the  heir  of  the  surviving  trustee.  L       "-' 

Sir  Edward  Mansell,  the  plaintiff's  husband,  died  afterwards  without  issue; 
and  upon  his  death  the  defendant  in  the  cause,  who  was  the  eldest  son  of  Raw- 
leigh Mansell,  was  the  remainderman  in  tail  of  the  estates  in  question,  but 
the  plaintiff  entered  upon  the  estates  under  her  jointure;  and  the  bill  was 
brought  by  her  for  confirmation  of  her  jointure,  and  for  delivery  of  some  deeds. 
And  one  of  the  questions  made,  and  much  agitated  in  the  cause,  was,  whether 
the  want  of  consent  of  the  heir  of  the  surviving  trustee  to  the  marriage  and 

1  Wilm.  36. 


372  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 

jointure  was  matter  of  circumstance  only,  and  the  Court  should  aid  the  execu- 
tion of  the  powers  as  being  defective  or  not. 

Lord  Commissioner  Willes  said,  "  I  observed  the  counsel  on  both  sides  have 
considered  this  consent  as  a  condition.  By  the  defendant's  counsel  it  has  been 
argued  as  a  condition  precedent :  by  the  plaintiflP's  as  a  condition  subsequent. 
I  think,  if  it  is  to  be  taken  as  a  condition,  it  must  be  a  precedent  one;  and, 
not  being  performed,  no  estate  could  arise.  The  trustees  were  not  only  to  con- 
sent to  the  marriage,  but  to  the  quantum  of  the  estate;  and,  therefore,  there 
are  two  conditions,  and  both  precedent." 

Lord  Commissioner  Wilmot. — "  Such  an  act  as  attends  this  power  must  be 
in  the  nature  of  a  condition  precedent.  I  have  no  idea  of  a  condition  annexed 
to  a  power  being  subsequent :  the  condition  must  be  performed  before  the 
power  can  take  effect.  All  powers  arise  out  of  the  original  freehold ;  and  the 
person  who  takes  under  a  power  takes  from  the  original  grantor  in  the  power; 
but  such  taker  must  bring  himself  within  the  description  to  enable  him  to 
take.  And  it  is  plain,  without  cases,  that  when  a  person  claims  by  designatio 
personge,  he  must  verify  the  description." 

Mr.  Mansfield  puts  this  as  the  case  of  a  vested  legacy.  If  it  had  been  given 
to  the  legatee,  without  the  intervention  of  trustees,  he  might  perhaps,  have 
aro-ued,  that  it  did  come  within  the  cases  of  legacies  vested,  though  to  be 
*paid  in  future.  But  here,  nothing  is  given  immediately  to  the  legatee, 
L  -"-"^  J  but  to  the  trustees ;  and  they  are  directed  "  to  pay  and  transfer,"  as 
it  seems  to  me,  to  one  of  two  persons,  at  a  certain  time,  and  on  certain  events, 
viz.,  when  the  legatee  shall  attain  the  age  of  twenty-five  years,  to  her,  if  un- 
married, or  if  married  with  consent;  but  if  not  married  with  consent,  to  her 
mother. 

With  respect  to  the  second  of  the  principles  mentioned,  viz.,  that  conditions 
annexed  to  legacies  of  marrying  with  consent,  where  the  legacies  are  not  spe- 
cifically devised  over,  are  to  be  held  in  terrorem,  and  not  necessary  to  be  per- 
formed, I  consider  the  circumstance  of  there  being,  or  not  being,  a  devise 
over,  as  a  ground  of  presumption  only  of  the  intent  of  the  testator,  and  not  a 
necessary  and  invariable  rule  of  itself.  And  this  will  appear  to  be  so,  by  con- 
sidering the  rule,  as  far  as  it  may  be  called  one,  and  the  principles  on  which 
it  has  been  adopted.  The  rule  is  laid  down  in  the  case  of  Stratton  v.  Grymes, 
2  A^ern.  357,  where  it  is  said,  that  a  devisee  over  being  named,  he  must  be 
looked  upon  as  a  person  whom  the  testator  considered  and  had  in  his  thoughts, 
as  to  what  provision  he  was  to  have  by  his  will ;  but  where  there  is  no  devise 
over,  the  condition  shall  be  held  in  terrorem  only;  because,  as  it  is  said  by 
Sir  Joseph  Jekyll  in  the  case  of  Ilervey  v.  AsUm.,  though  a  daughter  marries 
without  her  father's  consent,  yet  it  is  not  to  be  supposed  that  his  severity,  if 
living,  would  carry  him  so- far  as  to  leave  her  quite  destitute. 

As  to  the  rule  itself,  as  laid  down  in  StnUton  v.  Grymes,  Lord  Harcourt, 
in  observing  upon  it  in  the  case  of  Kimj  v.  Withers,  Prec.  Ch.  350,  says  it  is 
too  wide.  And  as  to  the  reason  given  by  Sir  Joseph  Jekyll,  if  it  be  the  true 
one,  it  does  not  apply  to  the  present  case;  for,  in  this  case,  the  daughter  is 


SCOTT     V.     TYLER.  373 

not  only  not  left  destitute,  but  is  provided  for  otherwise  :  and  where  that  is 
the  case,  the  rule  has  been  held  not  to  apply :  Gillet  v.  Wray,  1  P.  Wms.  284. 
Upon  authority,  therefore,  as  well  as  principle,  if  the  legatee  be  otherwise 
provided  for,  though  *there  be  no  devise  over,  the  legatee  must  fulfil 
the  condition  or  forfeit  the  legacy.  L     '    J 

But  it  is  said,  that  there  must  not  only  be  a  devise,  but  a  specific  devise 
over,  in  order  to  disappoint  the  legatee,  and  that  a  devise  of  a  residue  will  not 
do.  It  is  possible  that  the  precise  meaning  of  the  word  specific,  as  applied  to 
a  devise  over,  is  not  sufiiciently  attended  to ;  but  it  should  seem,  that  where 
the  devise  over,  though  of  a  residue  only,  be  to  a  particular  person,  that,  in 
such  a  case,  the  word  specific  applies  at  least  as  much  to  the  person  to  take  as 
to  the  thing  given ;  indeed,  otherwise  the  rule,  as  laid  down  and  reasoned 
upon  in  Stratton  v.  Gri/mes,  is  hard  to  be  understood. 

In  this  case  the  residue  is  expressly  given  to  Mrs.  Tyler  nominatim,  accom- 
panied with  strong  words  of  regard.  It  might  have  been  diflFerent  had  Mrs. 
Tyler  been  appointed  executrix,  and  the  residue  had  fallen  to  her  as  such. 
But  here  Mrs.  Tyler  seems  to  be  the  person  whom  the  testator  considered,  and 
had  it  in  his  thoughts  to  provide  for  specifically  next  after  his  daughter,  and 
in  case  his  daughter  should  not  comply  with  the  terms  of  marrying  with  the 
consent  of  her  mother,  if  she  thought  proper  to  marry  at  all  before  she  was 
twenty-five  years  of  age,  or  continuing  unmarried  till  that  time. 

Mr.  Maddochs,  for  the  defendants,  the  Hankeys. — By  their  answer,  the 
bankers  say,  that  they  were  bankers  to  Mr.  Key,  and  that  various  securities 
for  money  were  deposited  by  him  in  their  custody,  but  were  locked  up  in  a 
box,  to  which  they  had  no  key ;  that  Elizabeth  Tyler,  the  defendant,  also  de- 
posited with  them  securities  locked  up  in  a  box,  to  which  also  they  had  no  key, 
and  knew  nothing  of  the  contents  till  her  necessities  required  money,  when 
she  deposited  the  bonds  in  question  as  a  general  security.  They  deny  the 
knowing  anything  of  the  contents  of  Mr.  Key's  will,  and  they  claim  a  right  to 
detain  the  securities  deposited  by  her  till  they  are  paid  their  debt. 

An  executor  being  entitled  to  the  property  of  the  *testator,  if  he  .. 

sells  it  fairly,  the  Court  will  sustain  the  purchase ;  and  there  is  no  dis-  L  '  -' 
tinction  as  to  this,  between  its  being  a  specific  or  pecuniary  legacy.  Crane  v. 
Drake,  2  Vern.  616,  was  a  purchase  in  collusion  with  the  executors.  In  the 
marginal  note  of  18  Vin.  121,^  it  is  said,  that  case  was  cited  by  the  Lord 
Chancellor,  in  Nugent  v.  Gifiord,  who  said  he  had  examined  the  register-book, 
and  the  decree  was  founded  upon  particular  proof  of  fraud.  Nugent  v. 
Gifford,  1  Atk.  463,  and  Mead  v.  Lord  Orrery,  3  Atk.  235,  both  show  that 
the  possession  of  the  executor  is  a  sufficient  title  to  justify  the  purchasers. 
Bonney  and  Ridgard^  turned  merely  on  the  circumstances  of  the  case. 

Lord  Chancellor  Thurlow. — It  is  clear  the  purchaser  may  be  affected 
with  fraud.  The  only  question  is,  what  evidence  will  be  suflacient  to  prove 
it  ?     It  is  difficult  to  reconcile  Crane  v.  Drake  with  Nugent  v.  Gifford,  which 

1  4  Bro.  C.  C.  137.  ^  1  Cox,  145. 


874  COXDITIONS     IX     RESTRAINT     OF     MARRIAGE. 

seems  to  be  a  payment  of  the  executor's  debt  with  the  testator's  property, 
which  he  could  not  have  paid  any  other  way. 

Mr.  Mitford,  on  the  same  side. — The  Court  is  very  cautious  as  to  throwing 
difficulties  in  the  way  of  alienation  by  the  executors.  Lord  Ilardwicke,  in 
Mead  V.  Lord  Orrery,  said,  he  did  not  know  of  any  instance  where  an  assign- 
ment by  an  executor  had  been  set  aside,  unless  some  fraud  appeared  between 
the  executor  and  assignee. 

It  is  said  that  Bonney  v.  Ridgard  has  overturned^  the  doctrine  of  Mead  v. 
Lord  Orrery.  This  last  case  was  an  assignment  which  could  not  be  in  the 
execution  of  the  executor's  trust ;  it  was  an  assignment  to  a  Master  in  Chan- 
cery, as  a  security  for  accounting  as  a  receiver.  In  Bonney  v.  Ridgard,  there 
were  considerable  circumstances  to  show  that  the  assignment  of  the  equity  of 
redemption  was  not  with  perfect  fairness.  But  his  Honor's  observations  can- 
not have  the  weight  of  overturning  the  decision  of  Mead  v.  Lord  Orrery. 
The  money  might  have  been  borrowed  by  Ridgard  for  the  purpose  of  the  trust. 
r*lf^n  ^°  Mead  v.  Jjord^  Orrery,  no  money  passed;  the  *case  is  a  very  strong 
^  one,  and  goes  infinitely  beyond  this.     In  HumhJe  v.  Bill,  2  Veru.  444, 

Bill,  having  a  term  in  a  printing  office,  devised  that  £2000  should  be  raised 
out  of  it  for  his  daughter,  and  made  Garrett  the  executor.  Garrett  mortgaged 
the  prluting  office,  and  it  was  afterwards  assigned  to  Sir  William  Humble. 
The  Court  was  of  opinion  that  the  executor  had  a  power  to  alien  or  sell,  and 
decreed  in  favor  of  the  alienation ;  and  although  this  decree  was  reversed  in 
the  House  of  Lords,  yet  it  appears  from  Mr.  Brown's  report  of  it.  Savage  v. 
JTumhle,  3  Bro.  P.  C.  5,  Toml.  ed.,  to  have  been  upon  the  ground  of  some 
fraud  which  is  not  stated  in  the  abridgment  of  the  case,  and  it  is  always  treated 
as  a  case  of  fraud.  The  case  of  Crane  v.  Drake  turned  merely  upon  the  fraud. 
The  case  of  Nvgent  v.  Gifford  is  very  like  that  of  Crane  v.  Drake,  only  in  the 
latter  no  fraud  was  attributed  to  the  transaction.  In  the  present  case,  Mrs. 
Tyler  appeared  to  be  owner  of  the  whole.  It  is  not  the  practice  of  men  in 
general  to  look  very  nicely  into  the  title  of  chattels ;  it  is  the  confidence  re- 
posed by  the  testator  in  the  executor  that  enables  him  to  dispose  of  the  pro- 
perty; other  persons  in  dealing  with  him  rely  upon  that  confidence,  and  it  is 
looked  on  by  courts  to  be  more  hurtful  to  the  community,  to  encourage  a  dread 
of  dealing  with  executors,  than  to  permit  the  private  loss  where  they  have 
disposed  improperly.  The  principal  doubts  in  the  present  case  arise,  first, 
from  the  property  being  specifically  bequeathed;  secondly,  from  there  having 
been  no  formal  assignment  of  the  River  Lee  bonds.  First,  in  Bonney  v.  Rid- 
gard, the  property  was  specifically  bequeathed.  And  it  appears  by  Ewer  v. 
Corhet,  2  P.  Wms.  148,  that  this  is  not  material.  That  the  executor  may 
sell  a  term,  and  the  specific  devisee  has  no  remedy  against  the  purchaser,  but 
against  the  executor  only:  In  ILnnhJe  v.  Bill,  there  was  a  specific  charge, 
but  that  was  not  made  a  point  in  the  case.  Secondly,  as  to  the  security  not 
being  actually  assigned.     This  is  in  the  nature  of  a  mortgage.     According  to 

1  2  Ves.  409,  Lord  Ilardwicke's  observations. 


SCOTT     V.     TYLER.  375 

the  Act  of  Parliament,  the  security  is  to  pass  by  assignment  endorsed  on  the 
bond,  and  entered  in  the  *company's  books.  The  Ilankeys  would  p^,  r^-. 
have  a  right  as  against  the  executrix,  to  call  for  this  formal  assign- 
ment. In  Russell  V.  Russell,  1  Bro.  C.  C  269,^  before  the  Lords  Commis- 
sioners, a  lease  being  deposited  as  a  security,  the  Court  was  of  opinion,  that 
the  contract  was  executed  by  the  delivery  of  the  lease,  and  that  the  pledgee 
had  a  right  to  a  conveyance.  In  Niujent  v.  GIfford,  (from  a  MS.  note,)  it 
was  impossible  it  could  be  for  the  purposes  of  the  trust;  and  it  was  objected, 
that  Nugent  took  the  property  with  knowledge  of  its  being  the  testator's,  and 
therefore  was  a  party  to  the  devastavit ;  but  the  Lord  Chancellor  said,  if  it 
was  fairly  done,  its  being  for  money  bona  fide  due,  was  as  good  a  consideration 
as  for  money  paid ;  the  mere  knowledge  of  its  being  the  property  of  the  testa- 
tor is  not  sufficient.  In  Nugent  v.  Gifford,  it  was  an  equitable  assignment 
only,  and  it  was  held,  the  plaintiff  had  a  right  to  an  assignment.  Under  the 
circumstances  of  the  present  case,  Mrs.  Tyler,  as  executrix,  if  there  were  debts, 
might  assign  this  property  for  payment  of  them.  The  Hankeys  were  bankers 
both  to  Key  and  her;  there  was  no  fraud  in  them;  so,  if  they  were  plaintiffs 
instead  of  defendants,  they  would  have  a  right  to  call  for  an  assignment : 
even  supposing  there  to  be  a  prior  equitable  title  in  Mrs.  Scott,  they  have  a 
prior  legal  title,  having  the  possession  of  the  securities,  and  might,  therefore, 
keep  them  until  an  action  should  be  brought,  which  could  only  be  by  3Irs. 
Tyler,  who  could  not  recover  against  her  own  acts ;  the  Court  will  not,  there- 
fore, take  from  them  the  possession  of  the  deeds.  In  Head  v.  Egerton,  3  P. 
Wms.  280,  a  second  mortgagee  having  the  title-deeds  in  his  possession,  the 
first  mortgagee  cannot  compel  him  to  deliver  them  up  without  paying  him  his 
mortgage  money.  And  Lord  Talbot  considered  the  second  mortgagee's  claim  as 
arising  merely  from  having  the  title-deeds. 

LoED  Chancellor  Thurlow. — If  I  understand  the  case,  it  stands  thus : 
that,  upon  the  death  of  the  testator,  the  property  vested  in  the  executrix. 
She  might  have  vested  it  in  a  legal  manner  in  the  defendants,  but  she  j.^,  .q-, 
*only  left  the  securities  in  their  hands;  if  so,  they  have  as  fair  a 
mortgage  as  any  one  has  who  has  only  an  irregular  mortgage. 

Mr.  Ifansjield,  in  reply. — I  shall  endeavor  to  take  notice  of  the  several 
heads  of  argument  under  which  the  gentlemen  of  the  other  side  have  arranged 
the  questions  in  the  cause.  The  first  question  is  that  made  on  the  will,  and 
it  is,  whether  this  gift  to  the  plaintiff,  Mrs.  Scott,  is,  or  is  not,  a  simple  gift 
of  the  money  in  one  or  two  events,  or  she  was,  at  all  events,  to  have  the  money 
in  case  she  married.  The  first  gift  in  the  will  is  that  to  Dryer,  of  £5000, 
payable  when  he  should  attain  the  age  of  twenty-one ;  if  he  should  die  under 
that  age,  it  was  to  be  divided  between  the  defendant  Elizabeth  and  the  plain- 
tiff Margaret  Christiana,  and  if  the  latter  died  under  twenty-one,  it  was  to  go 
wholly  to  the  defendant  Elizabeth.  Then  comes  the  bequest  upon  which  the 
question  arises :  he  directs  his  executors  to  purchase  .£10,000  South  Sea  An- 

1  Ante,  Vol.  I.  p.  541. 


376  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 

nuities,  and  gives  a  direct  order  that  the  interest,  (except  the  £100  a  year  main- 
tenance,) should  accumulate  until  the  plaintiff  should  attain  her  age  of  twenty- 
one  years,  then  the  accumulation  was  to  stop,  and  half  of  the  stock,  and  all  the 
savings,  were  to  be  paid  to  her,  and  at  twenty-five  the  other  moiety  was  to  be  paid. 
Then  comes  the  provision  for  her  marrying  under  twenty-one,  and  the  gift  of 
the  stock  over  to  the  mother,  in  case  she  should  die  under  twenty-five,  unmar- 
ried. He  then  proceeds  to  give  her  the  houses  at  twenty-one,  and  if  she  dies 
under  that  age  he  gives  them  to  Dryer,  and  then  to  the  River  Lee  bonds, 
which  he  gives  to  the  plaintiff  at  twenty-one,  and  if  she  dies  under  that  age 
he  gives  them  to  the  mother,  the  defendant  Elizabeth.  He  afterwards  gives 
several  legacies,  and  gives  the  residue  to  the  defendant  Elizabeth  Tyler.  It 
is  a  mere  blunder  by  which  the  legacy  is  made  to  vest  at  twenty-five ;  he 
understands  and  means  that  she  shall  have  it  at  twenty-one,  if  married;  but  if 
married  before  twenty-one,  with  consent,  he  meant  to  accelerate  it,  and  that 
she  should  not,  in  that  case,  wait  till  she  attained  twenty-one.  The  provisions 
r*i  "01  ^^  ^'^  twenty-one  *and  twenty-five,  are  a  restraint  of  the  precedent  gift 
>  of  the  moiety  and  savings  at  twenty-one,  at  which  age  he  gives  her 

everything  else — the  houses,  the  River  Lee  bonds,  and  the  contingency  in 
Dryer's  legacy  of  £5000. 

If  this  be  the  fair  construction,  there  is  no  pretence  to  say  the  legacy  is  for- 
feited by  the  marriage.  The  gentlemen  on  the  other  side  have  fancied  them 
different  provisions  at  different  times ;  but  this  is  wrong,  for  by  their  construc- 
tion, if  the  plaintiff  married  at  seventeen,  and  died  under  twenty-one,  even 
leaving  children,  she  would  transmit  nothing  to  them.  There  is  no  arguing 
against  the  words  of  the  will.  The  £10,000  is  the  only  thing  given  as  a  por- 
tion :  out  of  that  alone  her  maintenance  is  to  arise,  out  of  the  other  funds  she 
is  to  derive  nothing  till  twenty-one;  this  is  the  reason,  that,  in  disposing  of 
them,  no  reference  is  made  to  her  marriage.  They  have  studiously  avoided 
taking  any  notice  of  the  remainder  over,  which  is  simply  in  the  event  of  her 
dying  unmarried.  This  is  a  ground  for  deciding  against  them  :  the  only  shift 
they  have  been  able  to  find,  is  to  construe  it  so  unmarried,  which  will  be  to 
contend,  that  dying  married  without  consent,  is  dying  unmarried.  The  clause 
of  dying  unmarried  is  at  twenty-five.  It  will  be  a  new  construction,  that  this 
signifies  the  same  thing  as  unmarried  under  twenty-one  :  it  shows  they  are 
sensible  of  the  efficacy  of  that  clause.  All  the  argument  from  the  bequest 
over,  is  therefore  in  full  force.  He  could  not  mean  what  he  has  expressed; 
for,  as  half  was  to  vest  at  twenty-one,  the  whole  could  not  go  over  if  she  died 
between  that  age  and  twenty-five.  He  could  not  mean  her  situation  to  be 
worse  if  she  married  between  twenty-one  and  twenty-five,  than  she  was  at  her 
arrival  at  that  age  :  but  it  is  contended,  she  is  only  to  take  in  the  events  pointed 
out.  But  the  restraint  being  -confined  to  twenty-one,  he  could  not  mean  her 
provision  should  be  less  upon  marrying  without  consent,  between  twenty-one 
and  twenty-five,  than  if  she  married  without  consent  under  twenty-one.  The 
mistake  is  obvious  :    it  arises  from   the  insertion  of  twenty-five,  instead  of 


SCOTT     V.     TYLER.  377 


twenty-one.     If  twenty-one  had  been  inserted,  *it  would  have  been 

clear  she  was  to  have  her  whole  fortune  upon  marriage  after  twenty-    L         J 

one,  or  upon  marriage  before  twenty-one  with  consent. 

In  the  present  case  there  are  no  negative  words;  it  is,  in  that  respect,  not 
like  Rei/nish  v.  Martin  ;  there  the  gift  was  upon  marriage  with  consent,  and 
not  otherwise ;  but  here  there  are  no  words,  nor  a  title  to  show  an  intent" to 
deprive  her  of  the  legacy.  On  the  fair  construction,  therefore,  of  the  will, 
according  to  the  true  intent  of  the  testator,  if  she  was  married  she  was  to  have 
the  whole  at  twenty-one,  and  the  provision  in  restraint  of  marriage  is  as  such 
in  terrorem  only. 

If,  however,  the  testator  has  expressed  himself  so  imperfectly,  that  she  is 
obliged  to  get  rid  of  the  objections  which  have  been  raised  to  the  legacy,  we 
must  consider  what  has  been  said  on  the  several  points. 

1st.  I  have  always  understood  the  point  to  be  established,  that  there  is  no 
distinction  between  conditions  precedent  and  conditions  subsequent,  except 
with  respect  to  lands,  or  where  there  was  a  devise  over ;  and  that  in  all  other 
cases  a  condition  in  restraint  of  marriage  was  void.     It  is  not  very  pleasant  to 
find  that  this  is  a  mere  distinction  of  authority,  not  of  reasoning;  and  that 
children  are  not,  in  all  reasonable  cases,  bound  by  the  authority  of  parents  and 
guardians.     In  reasoning,  subsequent  conditions  ought  just  to  prevail  as  much 
as  precedent  ones;  but  the  doctrine  is  established,  and  it  is  too   late  to  cor- 
rect it,  at  least  with  respect  to  subsequent  conditions.     But  it  is  said,  on  the 
other  side,  that  though  this  be  the  case  with  subsequent,  it  is  not  with  prece- 
dent conditions.     And  with  a  reference  to  some  of  the  cases,  the  intention  of 
the  testator  has  been  talked  of;  and  Mr.  Plumer  has  argued,  that  wherever 
the  intent  of  the  testator  appears,  that  shall  be  the  rule ;  but  in  the  same 
breath  he  says,  a   subsequent   condition  shall  not  prevail,  although  there 
can  be  no   doubt  but  a  subsequent  condition  speaks   the   intention  of  the 
testator  as  strongly  as  a  precedent  one  can  do.     It  is  contended,  however, 
that  the  authorities  are  different  as  to  precedent  conditions ;  but  the 
*authorities  put  precedent  conditions  out  of  the  way  as  much  as  sub-    ^         -^ 
sequent  ones.     The  doctrine  is  adopted  from  the  civil  law.     They  contend  the 
civil  law  has  been  misunderstood,  and  that  we  are  now  to  give  it  a  new  con- 
struction.    But  if  there  is  any  error  in  the  manner  in  which  the  civil  law  has 
been  construed,  the  time  for  correcting  that  error  is  past ;  the  doctrine  is  now 
established  too  strongly  to  be  moved;  it  has  become  the  law  of  the  Court,  and 
the  question  only  can  arise,  how  it  has  been  understood  and  adopted.     It  is  of 
no  avail  to  understand  it  better  than  those  who  adopted  and  established  the 
rule  have  done.     But,  in  fact,  the  civil  law  does  not  admit  the  distinction  be- 
tween precedent  and  subsequent  conditions.     What  is  the  difference  taken  on 
the   other  side  between   these  conditions?     That  precedent    conditions    are 
favored,  and  must  prevail ;  that  subsequent  ones  must  be  rigorously  construed 
as  to  their  validity,  and  may  be  dispensed  with  where  compensation  can  be 
made.     At  law  there  is  no  distinction  between  conditions  precedent  or  subse- 
quent, if  the  subsequent  condition  is  broken.     If  a  legacy  be  given  to  A.  if  he 


378  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 


marry  ^vith  consent  of  B.,  there  is  no  distinction  whether  in  point  of  form  it 
be  a  condition  precedent  or  subsequent ;  and  equity  has  nothing  to  do  with 
the  condition.     There  can  be  no  compensation,  and  therefore  there  is  no  dis- 
tinction between  them,  as  applied  to  this  subject.     If  it  is  so  applied,  it  is 
arbitrarily  to  create  a  law  for  the  purpose.     But  it  is  admitted  on  the  other 
side,  that  a  subsequent  condition  is  void.     There  is  no  argument  for  a  subse- 
quent condition  being  void,  that  will  not  equally  apply  to  a  precedent  condi- 
tion being  void  also.     A  great  many  cases  have  been  cited,  as  to  the  distinc- 
tion, which  I  shall  not  go  through  :    Creagh  v.  Wilson,  and  Amos  v.  Horner, 
were  clear  cases  of  alternative  provisions,  and  in  each  of  them  there  was  a 
remainder  over.     There  is  not  one  of  the  cases  where  a  precedent  condition 
prevailed.     Hervey  v.  Aston  is  that  which  has  been  the  most  relied  upon,  as 
favoring  what  has  been  contended  for  on  the  other  side.     It  is  not  easy,  from 
Lord  Chief  Baron  Comyns'  argument,  to  determine  what  his  opinion 
[*102]    ^^^g  .  ^^^  J  ^i^jj^j,  jj.  ^^^  i^g  gathered,  that  he  thought  both  the  pre- 
cedent and  the  subsequent  condition  void.     But  what  was  the  decision,  and 
the  ground  of  it,  in  that  case  ?     That  it  was  the  case  of  land,  and  therefore  the 
gift  could  not  take  place  till  the  condition  was  completed.     I  never  yet  knew 
any  other  conclusion  drawn  from  that  case,  but  that  it  was  so  distinguished 
from  the  case  of  personal  property.     But  how  came  Sir  Joseph  Jekyll  to  de- 
cide in  that  very  case  that  the  condition  was  void  ?     How  came  Lord  Hard- 
wicke,  or  Lord  Somers,  to  doubt  whether  such  a  legacy  was  to  take  place, 
when  the  condition  was  not  complied  with  ?     They  must  have  understood  that 
a  condition  in  restraint  of  marriage  was,  in  general,  void ;  but  doubted,  when 
it  was  to  arise  out  of  land,  whether  the  distinction  was  to  prevail,  or  was  to 
yield  to  the  ecclesiastical  rules.     These  are  the  principal  authorities  referred 
to  by  the  other  side;  for  I  shall  not  dwell  on  the  opinions  of  commentators  on 
the  civil  law,  which  is  a  lamentable  way  of  collecting  what  the  law  is. 

On  the  other  side  we  have  very  express  authorities :  from  Godolph.  Orph. 
Leg.  c.  15,  p.  45,  it  appears  that  such  a  condition,  though  precedent,  is  void; 
and  this  is  confirmed  by  the  passage  from  the  Digest,  cited  there.  In  the  cases 
of  Reynish  v.  Martin,  Underwood  v.  Morris,  and  Elton  v.  Elton,  the  point  is 
treated  as  perfectly  settled,  that  there  is  no  such  distinction.  In  Amos  v. 
Horner,  the  decision  proceeded  on  the  remainder  over;  not  on  the  condition 
being  precedent.  I  may  add  Gillet  v.  Wray,  where  the  condition  was  held 
good;  but  that  was  on  account  of  the  alternate  provision.  Bellasis  y.  Er- 
mine was  clearly  a  condition  precedent ;  and  the  Court  was  of  opinion  that  it 
was  only  in  tcrrorem.  In  Holmes  v.  Lysaght,  2  Bro.  1*.  C.  2G1,  Toml.  edit., 
the  counsel  in  their  reasons  expressly  state,  that  in  a  legacy  of  personalty  there 
is  no  distinction  between  conditions  precedent  and  subsequent.  Underwood 
V.  Morris  is  said  to  be  impeached  by  Hemmings  v.  Mnnlcley,  but  the  point 
determined  in  the  latter  did  not  apply  to  that  case.  Lord  Ilardwicke's  autho- 
rity on  this  subject  has  every  circumstance  *possible  to  give  it  weight; 
[*163]  yjgy,j^y^  y  Martin  was  lute  in  his  time,  and  was  determined  upon 
great  consideration.     He  bad  the  strongest  aversion  to  inconsiderate  mar- 


SCOTT     V.     TYLER.  379 

riages;  and  after  again  and  again  considering  the  subject,  he  decided  that 
point  in  that  case  as  an  established  rule  in  this  Court.  If  the  cases  are  such 
as  I  have  stated  them,  it  is  now  too  late  to  discuss  anything  but  what  the 
cases  are. 

2d.  It  has  been  endeavored,  on  the  other  side,  to  bring  in  the  devise  over; 
and  they  have  argued,  that,  being  given  to  the  plaintiff  in  three  events,  that 
in  all  others  the  legacy  goes  to  Mrs.  Tyler.  A  devise  over  exists  only  where 
there  is  a  gift  to  one,  if  he  marry  or  do  any  other  act ;  with  a  gift,  if  he  does 
not,  to  another  person.  A  residuary  bequest  does  not  amount  to  a  devise  over. 
There  is  no  devise  over  here,  but  what  there  is  in  every  case  where  there  is 
not  an  intestacy.  The  case  of  Stratton  v.  Grymes,  2  Vern.  357,  shows  that 
a  devise  over  is  only  a  gift  to  A.,  in  one  event,  in  another  to  B.,  where  B.  has 
as  good  a  claim  in  the  latter  event  as  A.  has  in  the  former.  As  to  a  residuary 
legacy  being  a  devise  over,  it  cannot  be  in  such  a  case  as  this,  where  it  is 
given  over  only  in  one  certain  event,  that  of  the  daughter  dying  unmarried 
under  twenty-five.  And  the  legacy  being  expressly  given  over  to  Mrs.  Tyler 
in  that  event,  it  is  absurd  to  say  it  is  given  over  to  her  in  another  event,  and 
in  a  different  character.  A  general  residuary  legatee  has  never  been  con- 
sidered as  a  devisee  over  of  a  particular  legacy. 

They  then  contended,  that  here  is  an  alternative  provision.  But  the  testa- 
tor has  said  no  such  thing.  The  other  gifts  are  without  any  reference  to  this 
legacy  of  £10,000  :  if  the  plaintiff  had  died  under  twenty-one,  she  would, 
according  to  their  argument,  have  had  nothing,  for  none  of  the  other  gifts 
vested  before  that  time.  There  is  not  the  least  ground  to  say  that  here  is  an 
alternative  within  the  meaniug  of  Gillet  v.  Wray,  where  one  thing  is  given 
in  one  event  and  another  in  another  event. 

^Another  ground  of  argument  has  been,  that  the  restraint  is  only  |-:j;-|p__,-i 
till  twenty-one,  though  there  is  a  passage  in  Swinburne,  where  a  re- 
straint to  twenty  is  said  to  be  good;  it  is  only  given  as  his  opinion;  and 
although  the  point  might  have  occurred  in  two  or  three  of  the  cases — as  Amos 
V.  Horner,  and  Creagli  v.  Wilson,  where  the  restraints  were  only  temporary, 
yet  it  was  not  insisted  upon  in  those  cases  :  and  although  the  restraint  in  Under- 
tcood  V.  Morris  was  only  till  twenty-one,  yet  the  condition  was  held  void,  and 
not  a  hint  given  that  the  circumstance  of  its  being  confined  in  point  of  time 
would  make  any  difference. 

Another  circumstance  introduced  to  vary  this  case  was,  that  here  the  re- 
straint was  given  to  a  parent.  In  the  civil  law,  the  mother  could  not  be  con- 
sidered as  a  parent.  Is  there  any  possible  distinction  to  be  taken  between  a 
parent  and  a  guardian  ?  The  law  makes  no  such  distinction,  and  reason  and 
common  sense  agree  in  this  with  the  law.  In  Hervey  v.  Aston,  the  consent 
first  required  was  that  of  the  mother;  but  no  distinction  was  made  on  that 
ground. 

The  objection  that  this  is  a  trust  is  also  perfectly  new.  If  there  is  any 
ground  for  this  distinction,  another  case  must  be  added  to  the  exceptions  upon 
this  subject,  that  a  condition  in  restraint  of  marriage  annexed  to  a  legacy 


380  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 

given  in  trust  for  the  legatee,  will  be  good,  though  if  the  legacy  be  given  im- 
mediately to  the  legatee,  it  will  be  void.  And  this  is  a  distinction  expected 
to  be  adopted  in  a  court  which  says,  that  trust  estates  follow  the  nature  of 
legal  estates.  Although  the  Ecclesiastical  Court  has  not,  in  general,  a  juris- 
diction over  trusts,  it  is  by  no  means  clear  that  that  court  may  not  compel  the 
executor  to  pay  the  legacy  to  the  party  actually  entitled ;  and  where  the  exe- 
cutor is  himself  the  trustee,  that  court  may  undoubtedly  compel  him  to  pay  it, 
as  he  in  that  case  only  is  what  he  is  in  all  cases — a  trustee  for  the  legatee. 
Upon  the  true  construction  of  this  will,  I  therefore  contend  Mrs.  Tyler  was 
not  to  have  this  legacy  if  Mrs.  Scott  married. 

r*1  ftf^T  *The  next  question  is,  with  respect  to  the  River  Lee  bonds ;  under 
the  authorities  which  have  been  cited,  I  contend,  the  bankers  have  no 
right  to  detain  them.  The  bonds  are  themselves  assignable  by  special  form, 
and  appearing  to  be  Mr.  Kee's,  Mrs.  Tyler's  property  appears  to  be  in  the 
character  of  his  executrix ;  as  she  has  them  under  no  assignment,  she  deposited 
these,  with  other  securities  for  money,  with  the  bankers,  as  a  security  for  the 
money  advanced.  It  is  clear,  therefore,  the  bankers  knew  they  were  dealing 
with  Mrs.  Tyler  as  the  executrix  of  Mr.  Kee.  They  lend  her  money  as  a 
trader,  not  for  the  purposes  of  the  trusts  of  the  will.  This  is  not  an  ordinary 
way  of  dealing  with  executors.  If  an  executor  sell  the  property  of  the  testa- 
tor, the  purchaser  is  not  bound  to  take  notice  of  the  application  of  the  money ; 
but  where  an  executor  deals  in  this  way,  it  is  incumbent  on  the  party  dealing 
with  him  to  be  cautious.  It  is  not  usual  for  an  executor  to  mortgage  the  tes- 
tator's property;  but  where  an  executor  enters  into  a  trade,  and  deposits  secu- 
rities belonging  to  the  testator  as  a  security,  it  is  incumbent  on  the  party  deal- 
ing with  him,  to  inquire,  whether  it  is  specifically  bequeathed.  Crane  y. 
Drake  goes  further,  for  that  was  the  case  of  a  creditor,  and  the  person  dealing 
with  the  executor  was  obliged  to  answer  to  the  creditors ;  and  although  in 
Nugent  v.  Gifford,  Lord  Hardwicke  held  the  mortgage  was  good,  yet  there  is 
a  distinction  between  a  creditor  and  a  specific  devisee,  as  the  party  may  know 
by  looking  into  the  will,  whether  the  property  is  specifically  bequeathed.  Exe- 
cutors will  neither  be  endangered,  nor  much  trouble  given  to  persons  dealing 
with  them,  if  they  are  bound  to  inquire  whether  the  property  is  specifically 
bequeathed. 

There  is  no  case  precisely  in  point  of  an  executor,  but  there  is  one  which 
bears  considerable  analogy;  a  factor,  (even  on  a  commission  del  credere,) 
though  he  has  a  complete  power  to  sell,  cannot  pledge  the  goods  of  his  prin- 
cipal for  his  own  debt.  If  a  person  to  whom  the  factor  is  indebted  takes  the 
goods,  he  shall  answer  to  the  original  owner. 

r*1  fin      *Here  the  Ilankeys  could  not  but  know  they  were  dealing  with  Mrs- 
Tyler  as  an  executrix, -with  respect  to  these  bonds. 

The  cause  stood  over  till  this  day,'  when  it  came  on  for  judgment. 

^LoRD  Chancellor  Thurlow. — This  is  a  bill  filed  by  Samuel  Scott  and 

1  20th  December,  1788. 

2  This  judgment  is  from  2  Dick.  712.     Mr.  Dickens  states  in  a  note,  that  Lord  Thur- 


SCOTT     V.      TYLER.  381 

Margaret  Christiana,  his  wife,  against  Elizabeth  Tyler,  the  residuary  legatee 
and  executrix  of  Richard  Kee,  George  Shakespeare,  Charles  Mahew,  and 
Philip  Nind,  executors  and  trustees  named  in  the  will  of  the  same  Richard 
Kee,  and  Richard  Dryer,  his  heir-at-law. 

The  bill  prays  that  the  plaintiff  Margaret  Christiana's  right  may  be  esta- 
blished in  a  trust  fund  of  £10,000  South  Sea  Annuities,  and  that  proper 
accounts  may  be  directed  accordingly ;  that  an  account  may  also  be  taken  of 
the  produce  of  certain  tenements,  and  of  certain  securities  upon  the  River 
Lee ;  and  that  the  same  may  be  duly  paid  and  assigned  to  her ;  and  that  the 
legacy  of  £100,  given  by  the  will  of  one  James  Cockburn,  may  be  paid  to 
her. 

For  this  purpose  the  bill  states  the  will  of  Richard  Kee,  made  on  the  16th 
day  of  December,  1776,  whereby  he  directs  his  executors  to  purchase  £5000 
South  Sea  Annuities,  of  the  year  1751,  in  their  own  names,  but  in  trust  to  pay 
£60  per  annum  for  the  maintenance  of  Richard  Dryer  till  his  age  of  fifteen, 
and  from  thenceforward  £120  per  annum,  with  liberty  to  raise  £400  to  put 
him  out  in  some  trade  or  profession,  the  surplus  profits  to  be  invested  in  the 
like  annuities,  and  the  whole  to  be  transferred  to  him  at  twenty-one ;  but  if  he 
dies  in  the  meantime,  the  whole  is  to  be  thereupon  divided  between  the  de- 
fendant Elizabeth  Tyler  and  the  plaintiff  Margaret  Christiana,  the  share  of 
Margaret  Christiana  not  to  be  transferred  to  her  till  her  age  of  twenty-one, 
and  if  she  dies  sooner,  her  share  is  to  go  over  to  Elizabeth. 

He  also  directs  his  executors  to  purchase  the  sum  of  £10,000  in  the  like 
annuities,  in  their  own  names,  in  trust  to  pay  Elizabeth  Tyler  £100  per  annum 
for  the  ^maintenance  of  Margaret  Christiana  till  her  age  of  twenty-  r^^-ipy-i 
one,  the  surplus  to  be  laid  out  in  the  meantime  in  the  like  annuities ; 
at  her  age  of  twenty-one,  if  then  unmarried,  one  moiety  is  to  be  transferred  to 
Margaret  Christiana,  for  her  own  use  and  benefit;  and  at  her  age  of  twenty- 
five,  if  then  unmarried,  the  remainder  to  be  transferred  in  like  manner. 

If  she  marries  with  the  consent  of  Elizabeth,  before  twenty-one,  a  moiety 
of  the  whole  sum  is  to  be  settled  to  her  separate  use,  and  for  her  issue,  accord- 
ing to  the  discretion  of  Elizabeth ;  the  other  moiety  to  be  disposed  of  as  Mar- 
garet Christiana  shall  think  fit ;  if  she  dies  unmarried,  before  her  age  of 
twenty-five,  the  whole  is  to  go  over  to  Elizabeth. 

He  also  gives  to  the  same  trustees  certain  freeholds  in  Denmark-court,  in 
trust  to  lay  up  the  rents  till  Margaret  Christiana  shall  attain  twenty-one,  where- 
upon he  gives  both  the  estates  and  their  produce  to  her  absolutely;  or  if  she 
dies  sooner,  to  Richard  Dryer,  or  if  he  be  then  dead,  to  Elizabeth  Tyler. 

He  gives  to  the  same  trustees  his  securities  on  the  River  Lee,  in  trust  to 
apply  the  produce  thereof  to  the  separate  use  of  Margaret  Christiana,  notwith- 
standing her  coverture,  till  twenty-one,  and  thereupon  to  her  absolutely;  but 
if  she  dies  sooner,  to  Elizabeth  absolutely. 

low  having  read  bis  judgment,  which  was  written,  gave  it  to  him,  and  that  the  following 
was  correctly  copied  from  it. 


382  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 

He  gives  clivers  other  legacies.  All  the  rest  of  his  estate,  real  and  personal, 
he  gives  to  Elizabeth  Tyler  absolutely,  whom  he  looks  upon  as  a  wife. 

He  died  on  the  3rd  of  November,  1776,  leaving  Elizabeth  surviving,  and 
Margaret  Christiana,  his  natural  daughter  by  her. 

On  the  17th  of  3Iay,  1783,  the  plaintiff  Samuel  Scott  clandestinely  and 
against  the  will  of  Elizabeth,  married  Margaret  Christiana,  then  an  infant  of 
eighteen  years.  Elizabeth  objected  to  it  as  an  improvident  match,  by  reason 
of  his  inferior  circumstances,  his  advanced  age,  and  the  family  which  he  had 
by  one  of  his  former  wives,  and  warned  her  daughter  of  the  consequence. 

And,  as  the  plaintiff  Samuel  Scott  states,  by  a  deed  of  *13th  of 
L  J  May,  1783,  he  has  covenanted  to  settle  Margaret  Christiana's  fortune 
on  her  and  her  children,  after  his  own  death,  if  she  or  they  should  survive 
him. 

The  bill  further  states  the  will  of  James  Cockburn,  who  died  in  October, 
1774,  leaving  Elizabeth  Tyler  his  executrix,  and  Margaret  Christiana  a  lega- 
tee of  £100. 

All  the  executors  proved  Kichard  Kee's  will ;  Elizabeth  Tyler  alone  acted. 

Elizabeth  Tyler  forthwith  transferred  £5000  South  Sea  Annuities  into  the 
names  of  the  trustees,  which  have  been  since  transferred  to  Dryer,  together 
with  the  accumulations,  and  that  legacy  has  been  duly  discharged. 

In  August,  1777,  she  transferred  £10,000  South  Sea  Annuities  into  the 
names  of  herself  and  co-trustees,  together  with  the  further  sum  of  £1000  of 
like  annuities,  whereof  she  has  constantly  received  the  produce ;  she  received, 
in  like  manner,  the  rents  of  the  freehold  houses  and  the  interest  of  the  secu- 
rities on  the  Kiver  Lee, 

She  admits  the  legacy  of  £100  to  remain  due,  and  that  she  had  assets,  but 
claims  a  debt  of  £900  against  the  plaintiff  Samuel  Scott. 

In  March,  178G,  Elizabeth  Tyler  became  a  bankrupt;  a  commission  issued, 
and  Sir  Edward  Vernon,  Thomas  Hankey,  John  Marr,  and  Malcolm  Cock- 
burn,  were  chosen  assignees.  It  appears,  also,  that  Elizabeth,  being  greatly 
indebted  to  her  bankers,  Thomas  Hankey,  Chaplain  Hankey,  Ilobert  Hankey, 
Stephen  Hall,  and  Richard  Hankey,  for  money  advanced  to  her,  to  carry  on 
certain  transactions  in  trade,  which  she  had  entered  into  on  her  own  account, 
after  the  death  of  the  testator,  they  opened  certain  boxes,  which  had  been 
deposited  with  the  bankers  for  safe  custody,  by  Richard  Kee,  in  his  lifetime, 
and  by  her  after  his  death,  and  took  out  ten  bonds,  securities  on  the  River 
Lee,  for  £100  each,  numbered  from  170  to  180,  the  last  number  inclusive, 
and  deposited  them,  among  other  things,  as  a  security  for  the  moneys  already 
advanced,  or  to  be  advanced,  by  the  bankers,  and  she  is  now  in  their  debt 
more  than  all  their  securities  she  deposited  with  them  are  worth.  Hereupon 
r*ifQn  ^^^^  ^^^^  ^^^  revived  against  the  ^assignees,  and  the  bankers  were  called^ 
•^  upon  to  account  for  the  ten  bonds  so  deposited  with  them,  and  the  in- 
terest received  upon  them,  as  being  the  property  of  the  plaintiffs,  by  reason 
of  the  above-mentioned  speciGc  bequests. 

Upon  this  matter  two  questions  have  arisen,  the  rest  of  the  cause  being 


SCOTT     V.     TYLER.  383 


mucli  of  course.  First,  whether,  as  the  case  stands,  the  plaintiffs  have  any, 
and  what  interest  in  the  £10,000  South  Sea  Annuities.  Secondly,  whether 
the  bankers  are  entitled  to  hold  the  ten  bonds  on  the  River  Lee,  as  a  security 
for  the  money  due  to  them  by  the  bankrupt. 

The  testator  makes  four  several  bequests  to  his  daughter  :  a  contingent  inte- 
rest in  the  £5000  South  Sea  Annuities  originally  given  to  Dryer,  the  £10,000 
South  Sea  Annuities  in  question,  the  freehold  tenements,  and  the  Lee  bonds, 
all  upon  the  event  of  her  living  till  the  age  of  twenty-one,  married  or  unmar- 
ried. If  she  dies  before  twenty-one,  the  first,  third,  and  fourth  bequests  take 
no  place,  and  yet  the  interest  of  the  fourth  is  to  be  paid  to  her  separate  use, 
notwithstanding  her  coverture  during  her  infancy;  but  there  is  an  event  upon 
which  the  second  bequest  may  take  place  before  twenty-one,  namely,  if  she 
marries  he/ore  that  age  ivith  the  consent  of  her  mother . 

It  is  impossible  not  to  suspect  that  the  testator  has  failed  of  expressing  his 
full  intention  concerning  this  bequest  of  the  £10,000.  He  gave  it  to  the 
daughter  on  a  double  contingency,  — her  age,  and  being  then  unmarried  ;  he 
seems  to  have  meant  it  for  the  mother  on  the  contrary  event ;  but  he  has 
given  it  over  also  to  her  on  a  double  contingency, — the  death  of  the  daughter 
before  her  age,  and  unmarried.  This  leaves  a  middle  case, — the  premature 
marriage  of  the  daughter, — in  which  neither  can  claim  under  the  form  of  this 
bequest.  Again,  he  has  provided  for  the  anticipation  of  the  daughter's  title, 
by  another  double  contingency;  namely,  marriagehefore  twenty-one,  and icith 
consent  of  the  mother ;  but,  in  case  of  a  marriage  between  twenty-one  and 
twenty-five,  with  or  without  consent,  half  the  legacy  would  remain  undisposed 
of;  which  it  can  hardly  be  imagined  he  meant. 

*Some  endeavors  were  used  to  infer,  from  the  terms,  in  which  it  was 
given  to  the  mother,  that,  in  all   other  events,  it  was  meant  for  the    L         -■ 
daughter ;'  it  is  more  probable,  that,  in  the  case  of  the  daughter's  not  becoming 
entitled,  it  was  meant  for  the  mother;  but  neither  conjecture  is  sufiiciently 
collected  from  the  actual  expression,  by  any  admissible  rules  of  interpretation. 

The  main  argument  for  the  plaintiff  turned  on  this  proposition,  that  one 
branch  of  the  contingency,  upon  which  the  legacy  was  given,  (or  rather  anti- 
cipated,) implied  a  condition  in  restraint  of  marriage,  which  is  merely  void, 
and  consequently  the  legacy  became  absolute. 

In  support  of  this  position,  innumerable  decisions  of  this  Court  were  quoted ; 
but  the  cases  are  so  short,  and  the  dicta  so  general,  as  to  afford  me  no  distinct 
view  of  the  principle  upon  which  the  rule  is  laid  down,  or,  consequently,  of 
the  extent  of  the  rule,  or  of  the  nature  of  the  exceptions  to  which  its  own 
principle  makes  it  liable. 

The  earlier  cases  refer  in  general  terms  to  the  canon  law,  as  the  rule  by 
which  all  legacies  are  to  be  governed.  By  that  law  undoubtedly  all  condi- 
tions which  fell  within  the  scope  of  this  objection, — the  restraint  of  marriage, 
are  reputed  void,  and,  as  they  speak,  pro  non  adjectis.  But  those  cases  go  no 
way  towards  ascertaining  the  nature  and  extent  of  the  objection. 

Towards  the  latter  end  of  the  last  and  beginning  of  the  present  century,  the 


384  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 

matter  is  more  loosely  handled.  The  canon  law  is  not  referred  to  (professedly 
at  least)  as  affording  a  distinct  and  positive  rule  for  annulling;  the  obnoxious 
conditions ;  on  the  contrary,  they  are  treated  as  partaking  of  the  force  allowed 
them  by  the  law  of  England.  But  in  respect  of  their  importing  a  restraint  of 
marriage,  they  are  treated  at  the  same  time  as  mifavorahle,  and  contrary  to 
the  common  weal  and  good  order  of  society.  It  is  reasoned  that  parental  duty 
and  affection  are  violated  when  a  child  is  stripped  of  its  just  expectations ; 
that  such  an  intention  is  improbably  imputed  to  a  parent,  particularly  in  those 
instances  where  there  was  no  misalliance,  as  in  marriage  with  the  houses  of 
Bellasis,^  *Bertie,^  Cecil,  and  Semphill,^  which  the  parent,  had  he  been 
L  -'^'•^J  alive,  would  probably  have  approved.  These  ideas  apply  indifferently 
to  bequests  of  lands  and  of  money,  and  were,  in  fact,  so  applied  in  one  very 
remarkable  case ;  nay,  to  avoid  the  supposed  force  of  these  obnoxious  condi- 
tions, strained  constructions  were  made  upon  doubtful  signs  of  consent,  and 
every  mode  of  artificial  reasoning  was  adopted  to  relax  their  rigor.  This  was 
thouf'ht  more  practicable  by  calling  them  conditions  subsequent,  although,  if 
that  had  made  such  difference,  they  were,  and  indeed,  must  have  been  gene- 
rally, conditions  precedent,  as  being  the  terms  on  which  the  legacy  was  made 
to  vest.  At  length  it  became  a  common  phrase,  that  such  conditions  were 
only  in  terrorem.  I  do  not  find  it  was  ever  seriously  supposed  to  have  been 
the  testator's  intention  to  hold  out  the  terror  of  that  which  he  never  meant 
should  happen ;  but  the  Court  disposed  of  such  conditions  so  as  to  make  them 
amount  to  no  more. 

On  the  other  hand,  some  provision  against  improvident  matches,  especially 
durino-  infancy,  or  to  a  certain  age,  could  not  be  thought  an  unreasonable  pre- 
caution for  parents  to  entertain.  The  custom  of  London  has  been  found  rea- 
sonable, which  forfeits  the  portion  on  the  marriage  of  an  infant  orphan  with- 
out consent.*  The  Court  of  Chancery  is  in  the  constant  habit  of  restraining  and 
punishing  such  marriages ;  and  the  legislature^  has  at  length  adopted  the  same 
idea,  as  far  as  it  was  thought  general  regulation  could  in  sound  policy  go. 

In  this  situation  the  matter  was  found  about  the  middle  of  the  present  cen- 
tury, when  doubts  occurred  which  divided  the  sentiments  of  the  first  men  of 
the  age.  The  difficulty  seems  to  have  consisted  principally  in  reconciling  the 
cases,  or  rather  the  arguments  on  which  they  proceeded.  The  better  opinion, 
or,  at  least,  that  which  prevailed,  was,  that  devises  of  land,  with  which  the 
canon  law  never  had  any  concern,  should  follow  the  rule  of  the  common  law; 
and  that  legacies  of  money,  being  of  that  sort,  should  follow  the  rule  of  the 
canon  law. 

*Lands  devised,  charges  upon  it,  powers  to  be  exercised  over  it, 
L  '  ■'J  money  legacies  referring  to  such  charges,  money  to  be  laid  out  in 
lands,  (though  I  do  not  find  ihis  yet  resolved,)  follow  the  rule  of  the  common 
law,  and  such  trusts  arc  to  be  executed  by  analogy  to  it. 

1  Bellasis  v.  Ermine,  1  Ch.  Ca.  22.  ^  Bertie  v.  Lord  Falkland,  3  Ch.  Ca.  129. 

»  Semphill  v.  Bayly,  Free.  Ch.  5G2.  <  Fodcn  v.  Howlett,  1  Vern.  354. 

6  26  Geo.  2,  c.  33. 


SCOTT     V.     TYLER. 


Mere  money  legacies  follow  the  rule  of  the  canou  law;  and  all  trusts  of  that 
nature  are  to  be  executed  with  analogy  to  that. 

But  still,  if  I  am  not  mistaken,  the  question  remains  unresolved,  What  is 
the  nature  and  extent  of  that  rule,  as  applied  to  conditions  in  restraint  of  mar- 
riage ? 

The  canon  law  prevails  in  this  country  only  so  far  as  it  hatli  been  actually 
received,  with  such  ampliations  and  limitations  as  time  and  occasion  have  in- 
troduced, and  subject  at  all  times  to  the  municipal  law.  It  is  founded  on  the 
civil  law ;  consequently,  the  tenets  of  that  law  also  may  serve  to  illustrate  the 
received  rules  of  the  canon  law. 

By  the  civil  law,  the  provision  of  a  child  was  considered  as  a  debt  of  nature, 
of  which  the  laws  of  civil  society  also  exacted  the  payment,  insomuch  that  a 
will  was  regarded  as  inofficious,  which,  did  not  in  some  sort  satisfy  it. 

By  the  positive  institutions  of  that  law,  it  was  also  provided,  si  quis  ca^li- 
batus,  vel  viduitatis  conditionem  haeredi,  legatariove  injunxerit;  ha3res,  lega- 
tariusve  e  conditione  liberi  sunto ;  neque  eo  minus  delatam  hsereditatem,  lega- 
tumve,  ex  hac  lege,  consequautur.' 

In  ampliation  of  this  law,  it  seems  to  have  been  well  settled  in  all  times,  that 
if,  instead  of  creating  a  condition  absolutely  enjoining  celibacy,  or  widowhood, 
the  same  be  referred  to  the  advice  or  discretion  of  another,  particularly  an  in- 
terested person,  it  is  deemed  a  fraud  on  the  law,  and  treated  accordingly ;  that 
is,  the  condition  so  imposed  is  holden  for  void. 

Upon  the  same  principle,  in  further  ampliation  of  the  law,  all  distinction  is 
abolished  between  precedent  and  subsequent  conditions ;  for  it  would  be  an 
easy  evasion  of  such  a  law,  if  a  slight  turn  of  the  phrase  were  allowed 
*to  put  it  aside.  It  has  rather,  therefore,  been  construed,  that  the  L  '^-J 
condition  is  performed  by  the  marriage,  which  is  the  only  lawful  part  of  the 
condition,  or  by  asking  the  consent;  for  that  also  is  a  lawful  condition;  and, 
for  the  rest,  the  condition  not  being  lawful,  is  holden  pro  non  adjecta. 

On  the  other  hand,  the  ancient  rule  of  the  civil  law  has  suffered  much 
limitation  in  descending  to  us. 

The  case  of  widowhood  is  altogether  excepted  by  the  Novels;^  and  injunc- 
tions to  keep  that  state  are  made  lawful  conditions. 

So  is  every  condition  which  does  not,  directly  or  indirectly,  import  an  abso- 
lute injunction  to  celibacy. 

Therefore,  an  injunction  to  ask  the  consent,^  as  I  have  said  before,  is  a 
lawful  condition,  as  not  restraining  marriage  generally. 

A  condition  not  to  marry  a  widow  is  no  unlawful  injunction,  for  the  reason 
jriven  before. 


1  Heineccius  ad  legem  Papiam  Poppfeara,  1776,  p.  294,  and  see  the  Commentarv,  p.  298. 

2  Novell.  22,  c.  44. 

3  Sutton  V.  Jewke,  2  Cli.  Rep.  9  ;  Creagh  v.  Wilson,  2  Vern.  572  ;  Ashton  v.  Ashton, 
Prec.  Ch.  226;  Chauncj  t.  Graj-don,  2  Atk.  616  ;  Hemmings  v.  Munkley,  1  Bro.  C.  C. 
304;  Dashwood  v.  Bulkeley,  10  Ves.  230. 

VOL.  II. — 25 


386  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 

So,  of  an  annuity  to  a  widow  during  her  widowhood.^ 

A  condition  to  marry,  or  not  to  marry,  Titius  or  Msevia,  is  good,  for  this 
reason,  that  it  implies  no  general  restraint;  besides,  in  the  first  case,  it  seems 
to  have  a  bounty  to  Titius  or  Ma^via  in  view.^ 

In  like  manner,  the  injunction  which  prescribes  the  due  ceremonies,  and 
the  place  of  marriage,  is  a  lawful  condition,  and  is  not  understood  as  operating 
the  general  prohibition  of  marriage. 

Still  more  is  a  condition  good,  which  only  limits  the  time  to  twenty-one'  or 
any  other  reasonable  age,  provided  this  be  not  evasively  used  as  a  covered 
purpose  to  restrain  marriage  generally.  And  this  must  obtain  still  more 
forcibly  where  the  lex  loci  implies  the  same  restraint. 

Nay,  according  to  Godolphin,  the  use  of  a  thing  may  be  given  during  celi- 
bacy; for  the  purpose  of  intermediate  maintenance  will  not  be  interpreted  ma- 
liciously, to  a  charge  of  restraining  marriage.* 

It  seems  also  agreed  on  all  hands,  that  when,  on  any  condition,  however 
r*l7il  restrictive  of  marriage,  the  legacy  is  *given  over  to  pious  uses,  the 
intention  of  the  party  shall  be  deemed  to  regard  those  uses,  and  not 
to  have  aimed  at  the  objectionable  purpose  of  restraining  marriage.^ 

As  we  receive  the  canon  law,  a  bequest  over,  to  any  purpose,  or  person,  shall 
be  interpreted  in  the  same  manner,  and  make  a  conditional  limitation. 

It  was  made  a  question,  formerly,  what  a  legatee  should  take  on  her  mar- 
riage, under  a  bequest  of  £200  if  she  married,  or  £100  if  she  did  not.  Some 
thought  £300,  some  £200,  some  £100.  In  our  books  we  find  it  determined 
formerly,  in  the  case  of  a  greater  legacy  given  upon  marriage  with  consent,  or 
after  a  certain  age,  and  a  less  in  the  other  events,  that  the  greater  legacy  was 
not  forfeited  by  marrying  against  the  condition  f  but  those  decisions  happened 
in  the  period  alluded  to  before,  when  the  worth  of  the  alliance  was  thought  a 
sufficient  reason  for  a  favorable  interpretation,  as  it  was  called,  of  the  condi- 
tion ;  but  Lord  Cowper  determined  otherwise,  on  alternative  bequests.'' 

It  is  true  that  the  foregoing  limitations,  which  are  detailed  in  Swinburne 
and  Godolphin,  are  not  found  in  our  reports  so  expressly  stated ;  but  the  cases 
did  not  call  for  such  particularity,  except  those  few  alluded  to  before,  which 
turned  upon  the  looser  doctrine  of  favorable  interpretation,  and  that,  which  is 
not  to  be  supported,  of  Underwood  v.  3foi'ru,^  and  which  was  determined  by 
Mr.  Justice  Parker,  sitting  for  the  Lord  Chancellor.     It  does  not  appear  by 

1  Jordan  v.  Ilolkam,  Amb.  209 ;  Barton  v.  Barton,  2  Vern.  308. 

2  Jervoise  v.  Duke,  1  Vern.  19  ;  Randal  v.  Payne,  1  Bro.  C.  C.  55. 

*  Stackpole  v.  Beaumout,  3  Ves.  89. 

*  Sec  Webb  v.  Grace,  2  Ph.  701,  reversing  S.  C.  15  Sim.  384  ;  Morley  v.  Rennoldson, 
2  Ilarc,  570,  580. 

^  Swinb.  Part  4,  sects.  12,  14.' 

6  Hicks  V.  Pendarvis,  Freem.  Ch.  Rep.  41 ;  2  Eq.  Ca.  Ab.  212;  Bellasis  v.  Ermine,  1 
Ch.  Ca.  22. 

T  Creagh  v.  Wilson,  2  Vern.  572  ;  Gillet  v.  Wrny,  1  P.  Wms.  284. 
8  2  Atk,  184. 


SCOTT     V.     TYLER.  387 


any  report  that  I  Lave  seen,  to  have  been  closely  considered;  it  is  contrary  to 
the  canon  and  civil  law,  and  apparently  unreasonable,  the  restraint  having 
been  imposed  only  till  twenty-one,  and  the  marriage  contracted  iuiprovidently 
at  sixteen.  I  therefore  agree  with  the  late  Lords  Commissioners^  in  denying 
the  authority. 

Sir  Dudler  Rider,  in  arguing  the  case  of  Ilervey  v.  Aston,  expressly  founds 
his  argument  on  the  perpetuation  of  the  restraint;  and  Dr.  Strahan,  who 
argued  on  the  same  side,  admits  the  qualification  of  time,  place,  and  person, 
as  given  before. 

*The  will  before  us  contains  a  residuary  bequest ;  but  that  has  been  r^-|Tr-| 
repeatedly,  and  well  enough  determined,  to  leave  the  conditional  legacy 
in  statu  quo  f  it  only  prevents  that  which  has  not  been  disposed  of  already, 
whatever  be  its  amount,  from  falling  by  order  of  law  to  the  executor  or  nest 
of  kin. 

But  the  great  vice  of  the  argument  in  favor  of  the  daughter  lies  here.  It 
was  not  contended  against  the  rules  above  mentioned,  if  the  bequest  had  been 
to  her  at  twenty-one  or  twenty-five,  in  case  she  were  then  unmarried,  without 
more,  that  she  could  have  claimed  the  legacy  at  any  other  time,  or  in  any 
other  case.  But,  because  the  mother  was  empowered  to  accelerate  the  gift  by 
her  consent  to  a  proper  marriage,  and  a  proper  settlement,  it  was  thence 
argued,  that  it  was  indirectly  putting  an  illegal  constraint  upon  marriage.  Now, 
if  the  first  branch  of  the  gift  did  not  impose  a  direct  restraint,  in  contradiction 
of  law,  the  relaxation  of  that  condition  certainly  would  not  operate  as  an  indi- 
rect restraint  of  the  same  nature. 

I  am  therefore  of  opinion,  that  the  daughter,  having  married  at  eighteen 
improvidently,  so  far  as  appears,  and  against  the  anxious  prohibition  of  the 
mother,  never  came  under  the  description  to  which  the  gift  of  the  £10,000 
was  attached. 

It  was  therefore  void,  and  a  part  of  the  residue ;  consequently  it  belongs  to 
the  assignees  of  the  mother,  the  defendants ;  and  the  bill  must  be  dismissed, 
so  far  as  it  seeks  to  have  that  trust  executed. 

The  second  point*  made  by  the  plaintifi"  goes  to  recover  specifically  the 
£1000  bonds,  securities  on  the  Biver  Lee,  out  of  the  hands  of  Hankey  &  Co., 
the  bankers,  with  whom  they  were  pledged  by  the  mother,  the  executrix,  to 
secure  a  private  debt  of  her  own. 

This  must  proceed  upon  the  ground  of  imputing  fraud  to  the  bankers,  in 

1  See  Hemmings  v.  Munkley,  1  Bro.  C.  C.  304;  and  see  Stackpole  v.  Beaumont,  3  Ves. 
89 ;  Knight  v.  Cameron,  14  Ves.  389;  Clifford  v.  Beaumont,  4  Russ.  325. 

-  Semphill  v.  Bayly,  Prec.  Ch.  562 ;  Paget  v.  Haywood,  cited  1  Atk.  378,  overruling  Amos 
V.  Horner,  1  Eq.  Ca.  Ab.  112,  pi.  9,  but  where  there  is  an  ex-direction  that  the  forfeited 
legacy  shall  fall  into  the  residue.  See  Wheeler  v.  Bingham,  3  Atk.  364 ;  Lloyd  v.  Bran- 
ton,  3  Mer.  108,  overruling  dictum  in  Reeves  v.  Heme,  5  Vin.  Ab.  343,  pi.  41  ;  and  see 
Ellis  V.  Ellis,  1  S.  &  L.  1. 

3  It  appears  that  the  Lord  Chancellor  did  not  actually  deliver  judgment  on  the  se- 
cond point,  as  he  was  interrupted  by  the  Solicitor-General,  who  informed  him  that  the 
parties  had  come  to  a  compromise,  2  Bro.  C.  C.  489. 


388  CONDITIOXS     IN     RESTRAINT     OF     MARRIAGE. 

concerting  with  tlie  executrix  a  devastavit  and  misapplication  of  that  part  of 
the  testator's  effects,  to  disappoint  the  specific  legatee. 

The  bonds  were  specifically  bequeathed  to  the  executors,  in  trust  to  receive 

r*i  7P-|  tlie  interest  for  the  use  of  the  infant  *till  twenty-one,  for  her  sepa- 

rate  use,  notwithstanding  her  coverture,  and  at  twenty-one  to  transfer 

the  principal  and  interest  due  thereon  to  the  daughter,  for  her  own  use  and 

benefit. 

The  testator  died  in  17TG,  leaving  an  ample  sufficiency  to  pay  his  debts ; 
his  executrix  was  therefore  bound  to  assent  to  the  specific  legacy. 

Three  years  afterwards,  in  1779,  the  bankers  took  these  effects,  which  they 
must  know  had  been  the  testator's,  from  her,  whom  they  also  knew  to  be  his 
executrix,  by  purchase  with  money  then  advanced,  not  as  a  pledge  for  money 
then  lent,  but  as  a  pledge  for  a  debt  contracted  with  them  before,  on  her  own 
account;  and  though  the  debt  was  contracted  after  she  became  executrix,  yet 
it  was  two  years  afterwards,  and  without  any  reference  to  the  testator's  affairs. 
The  bonds,  it  is  also  admitted,  were  not  assigned. 

It  is  of  great  consequence  that  no  rules  should  be  laid  down  here  which 
may  impede  executors  in  their  administration,  or  render  their  disposition  of 
the  testator's  effects  unsafe  or  uncertain  to  the  purchaser.  His  title  is  com- 
plete by  sale  and  delivery.  What  becomes  of  the  price  is  no  concern  of  the 
purchaser.  This  observation  applies  equally  to  mortgages  and  pledges,  and 
even  to  the  present  instance,  where  assignable  bonds  were  merely  pledged 
without  assignment. 

It  applies  also  where  the  transaction  is  with  one  of  many  executors,  for  each 
is  competent. 

But  fraud  and  covin  will  vitiate  any  transaction,  and  turn  it  to  a  mere  color. 
If  one  concerts  with  an  executor,  or  legatees,  by  obtaining  the  testator's  effects 
at  a  nominal  price,  or  at  a  fraudulent  under-value,  or  by  applying  the  real 
value  to  the  purchase  of  other  subjects,  for  his  own  behoof,  or  in  extinguish- 
ing the  private  debt  of  the  executor,  or  in  any  other  manner,  contrary  to  the 
duty  of  the  office  of  executor,  such  concert  will  involve  the  seeming  purchaser 
or  his  pawnee,  and  make  him  liable  for  the  full  value. ^ 

P^._H.-|  Upon  both  grounds  I  think  the  defendants  Hankey  &  Co.  *must 
deliver  up  the  bonds,  and  account  for  the  interest  they  have  received 
upon  them.  The  bonds  as  a  specific  legacy  were  legally  vested  in  the  execu- 
tors, as  trustees  for  the  plaintiffs,  and  the  possession  of  the  Ilankeys,  without 
assignment,  gave  them  but  a  posterior  equity. 

They  were  delivered  as  a  security  for  the  private  debt  of  the  executor,  to 
which  the  Ilankeys  knew  they  were  not  liable  till  all  the  debts  and  legacies  of 
the  testator  were  satisfied. 

Therefore,  let  the  plaintiffs'  bill  stand  dismissed,  so  far  as  it  seeks  the  exe- 
cution of  the  trust  in  the  will  of  llichard  Kec  of  the  £10,000  South  Sea  An- 
nuities there  mentioned. 

1  As  to  tlic  liability  of  a  purchaser  to  sec  to  the  application  of  his  purchase-mo nej, 
see  Elliot  v.  Merryman,  ante,  vol.  1,  p.  45,  and  note. 


SCOTT     V.     TYLER.  389 


Let  the  defendants  Hankey  &  Co.  bring  the  ten  bonds  on  the  River  Lee, 
mentioned  in  the  pleadings  in  this  cause,  into  the  Master's  oiEce,  to  be  there 
deposited,  subject  to  the  further  order  of  the  Court :  and  let  them  also  account 
before  the  Master  for  all  interest  they  shall  have  received  on  the  said  bonds, 
and  pay  the  amount  thereof  into  the  Bank,  in  the  name  of  the  Accountant- 
General,  in  trust  in  this  cause,  and  subject  to  further  order. 

And  let  an  account  be  taken  also  of  what  the  said  executors,  or  any  of  them 
shall  have  received  for  interest  on  the  said  bonds  on  the  River  Lee,  and  also 
for  the  rents  of  the  freehold  houses  in  Denmark-court. 

And  let  the  costs  of  the  plaintiffs,  and  of  the  defendants,  the  executors, 
except  Elizabeth  Tyler,  be  taxed;  and  let  what  shall  be  found  due  for  such 
costs,  and  also  on  account  of  the  interest  of  the  said  bonds,  be  raised  by  sale  of 
so  much  of  the  £10,000  South  Sea  Annuities  as  will  be  sufficient  for  that  pur- 
pose. The  said  costs  to  be  paid  to  the  respective  parties,  and  the  said  interest 
to  be  paid  into  the  Bank,  in  the  name  of  the  Accountant-General,  subject  to 
further  order. 

And  it  being  admitted,  that  the  defendant  Elizabeth  Tyler  alone  received 
the  rents  of  the  said  freehold  tenements,  let  an  account  be  taken  as  against 
her,  of  what  remains  due  thereon. 

And  let  an  account  be  taken  of  what  remains  due  for  *the  £100 
bequeathed  by  the  will  of  James  Coekburn,  and  the  interest  thereon,   C*^'''^] 
from  one  year  after  his  death. 

And  let  an  account  be  taken  of  what  the  said  Samuel  Scott  is  indebted  to 
the  said  Elizabeth  Tyler;  and  let  the  same  be  deducted  from  the  amount  of 
the  account  lastly  before  directed ;  and  let  the  plaintiff  Samuel  Scott  be  ad- 
mitted a  creditor  for  the  balance,  under  the  bankruptcy  of  the  said  Elizabeth 
Tyler,  and  let  such  sum  as  he  shall  receive  for  a  dividend  thereon,  be  paid  into 
the  Bank,  in  the  name  of  the  Accountant-G-eneral,  in  trust  in  this  cause,  and 
subject  to  further  order. 

Refer  it  to  the  Master,  to  inquire  what  settlement  the  plaintiff  Samuel  hath 
made  on  the  plaintiff  Margaret  Christiana,  and  whether  the  same  be  competent 
and  proper;  and  if  he  shall  find  that  no  such  settlement  hath  been  already 
made,  let  him  receive  proposals  for  such  a  settlement. 

And  reserve  the  consideration,  in  what  manner  the  said  freehold  tenements 
in  Denmark-court  shall  be  conveyed  and  assigned ;  and  the  several  sums  shall 
[not]  be  paid  out  till  the  Master  hath  made  his  report. 

And  reserve  the  consideration  of  subsequent  costs,  and  all  other  matters,  till 
after  the  Master  shall  have  made  his  report. 


Upon  principles  of  public  policy,  conditions  annexed  to  legacies,  devises,  or 
contracts  operating  unduly  in  restraint  of  marriage,  as  well  as  contracts  entered 
into  for  the  purpose  of  promoting  marriage  for  reward,  or  in  fraud  of  one  of 
the  parties  to  the  marriage  or  their  friends,  are,  by  the  laws  of  England,  which 
have  in  many  respects  been  influenced  by  the  civil  law,  utterly  null  and  void. 


390  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 

It  is  proposed  in  this  note  to  consider  how  such  conditions  and  contracts  are 
dealt  with  in  courts  of  equity. 

As  to  Testamentary  Gifts  jiroliihiting  or  tending  to  a  2'>rohibition  of  Mar- 
riage.— Both  hy  the  common  law  of  England,  as  well  as  by  the  civil  law,  all 
conditions  annexed  to  gifts  generally  prohibiting  marriage,  are  void,  as  being 
against  public  policy,  or,  as  Lord  Thurlow  expresses  it  in  the  principal  case, 
"  contrary  to  the  common  weal  and  good  order  of  society :"  KeiJy  v. 
[*179]  *j^^^„^^.^  3  j^idgw.  P.  C.  205,  244,  247,  2G1 ;  IJervey  v.  Aston,  Com. 
Rep.  726,  729 ;  S.  C,  1  Atk.  3C1 ;  1  Eq.  Ca.  Ab.  110,  pi.  2,  n.  a ;  Risliton 
V.  Cobb,  9  Sim.  615,  619 ;  Morley  v.  RennoUson,  2  Hare,  570 ;  Connelly  v. 
Connelly,  7  Moore,  P.  C.  C.  438. 

And  not  only  conditions  actually  prohibiting,  but  also  such  as  lead  to  apro- 
hahle  prohibition  of  marriage  are  void.  Thus,  where  a  legacy  was  given  by  a 
testator  to  his  daughter,  payable  on  her  marriage  or  age  of  twenty-one,  upon 
condition  "that  she  shall  not  marry  without  consent,  or  shall  not  marry  a  man 
who  shall  not  be  seised  of  an  estate  in  fee  simple,  or  of  freehold  property  of  the 
clear  yearly  value  of  £500,"  the  condition  was  held  void  :  Keily  v.  Monck,  3 
Ridg.  P.  C.  205.  And  see  Long  v.  Dennis,  4  Burr.  2052.  For  the  civil 
law,  see  Dig.  xxxv.,  tit.  1,  1.  22,  64,  72 ;  s.  4,  78,  s.  4,  100. 

But  a  condition  to  marry  or  not  to  marry  particular  persons,  or  at  a  parti- 
cular place,  was  by  the  civil  law  good,  as  not  operating  in  general  restraint  of 
marriage,  unless,  in  the  ease  of  a  condition  to  marry  a  particular  person,  it 
appeared  that  the  match  was  derogatory ;  or,  in  the  case  of  the  condition  to 
mai'ry  at  a  particular  place,  it  appeared  that  marriage  would  not  be  likely  to 
take  place  elsewhere;  for,  in  these  cases,  the  condition  would  be  void,  as  a 
fraud  upon  the  law  :  Dig.  xxxv.,  tit.  1,  1.  63,  64. 

Upon  the  same  principle,  according  to  our  law,  and  to  a  greater  extent  than 
by  the  civil  law,  all  conditions  which  do  not,  directly  or  indirectly,  import  an 
absolute  injunction  to  celibacy  are  valid.  Thus,  a  condition  to  marry  or  not 
to  marry  any  particular  persons,  (.Jcrvois  v.  DuJce,  1  Vern.  19 ;  Randal  v. 
Payne,  1  Bro.  C.  C.  55;)  or  a  native  of  any  particular  country,  {Perrin  v. 
Lyon,  9  East,  170 ;)  or  a  person  belonging  to  a  particular  religious  sect,  as  a 
papist,  {Dvggan  v.  Kelly,  10  Ir.  Eq.  Rep.  295;  1  Eq.  Ca.  Ab.  110;  pi.  2, 
n.  a;)  or  a  condition  which  prescribes  the  ceremonies  of  marriage,  although 
differing  from  those  of  the  established  church,  as  those  of  the  Quakers,  {ITaugh- 
ton  V.  Ilaughton,  1  Moll.  611 ;)  or  which  prohibits  marriage  before  twenty- 
one,  or  other  reasonable  age,  {Staclqwle  v.  Beaumont,  3  Ves.  89,)  even  before 
twenty-eight,  {Yonge  v.  Furse,  3  Jur.  N.  S.  603,)  is  not  illegal. 

It  is  said,  however,  that  a  condition  not  to  marry  a  man  of  a  particular  pro- 
fession or  calling,  whether  there  be  a  limitation  over  or  not  is  not  legal,  (1  Eq. 
Ca.  Ab.  110,  pi.  2,  n.  a,)  upon  the  ground  it  is  presumed  that  it  leads  to  a 
probable  prohibition  of  marriage ;  Kelly  v.  Monck,  3  Ridg.  P.  C.  205,  265. 

It  has  been  recently  laid  down  that  there  is  neither  principle  nor  authority 

for  saying  that  a  parent  may  not  make  a  provision  for  his  *daughter 

L         J  cease  on  her  taking  the  veil,  or  becoming  permanently  connected  with 


SCOTT     V.     TYLER.  391 


a  couveut.  The  conditioa  is  conditio  rei  liciti\3,  and  so  the  rules  derived  from 
conditions  in  restraint  of  marriage  or  otherwise  against  the  liberty  of  the  h\w, 
are  inapplicable.     Dickson's  Trusts,  1  Sim.  N.  S.  37,  4G. 

According  to  the  Iloman  law,  if  a  legacy  was  given  to  a  widow,  if  she  did 
not  marry  away  from  her  children,  the  condition  would  be  void ;  but  if  the 
legacy  were  "  si  a  liberis  impuberibus  ne  nupserit,"  the  condition  would  be 
good;  and  the  reason  given  was,  "quia  magis  cura  liberorum,  quam  viduitas 
injungeretur :"  Dig.  Lib.  xxxv.,  tit.  1,  G2,  s.  2,  and  tit.  1,  72.  Widows,  as 
observed  by  Lord  Thurlow,  in  the  principal  case,  were  excepted  from  the 
Novels ;  and  it  is  clear,  that,  according  to  our  law,  a  gift  during  widowhood  is 
good  :  Barton  v.  Barton,  2  Vern.  308  ;  Jordan  v.  Holkam,  Amb.  209  ;  Lhi/d 
V.  Lloi/d,  2  Sim.  N.  S.  255,  263. 

By  the  Roman  law,  however,  all  conditions  requiring  consent  to  marriao-e 
seem  to  have  been  void,  and  the  gifts  dependent  upon  them  to  have  been  good 
upon  a  marriage  taking  place  without  consent,  (Dig.  xxxv.,  tit.  1, 1.  72,  s.  4;) 
as  would  also  be  the  case  if  the  person  whose  consent  was  required  died  in  the 
lifetime  of  the  testator :  Dig.  xxxv.,  tit.  1,  1.  28. 

By  the  law  of  England,  conditions  restraining  marriage  under  the  age  of 
twenty-one  or  other  reasonable  age,  unless  with  the  consent  of  parents,  guar- 
dians, or  executors,  {Sutton  v.  Jewke,  2  Ch.  Rep.  9;  Creagh  y.  Wilson,  2 
Vern.  573;  Asliton  v.  Ashton,  Prec.  Ch.  226;  Chauncy  v.  Graydon,  2  Atk. 
616;  Ilemynings  v.  Munkley,  1  Bro.  C.  C.  304;  Dashwood  v.  Bulkcley,  10- 
Ves.  230,)  are  valid. 

But  although  such  restraint  may  be  valid,  the  effectiveness  of  the  condition 
imposed  will  depend,  in  a  great  measure,  upon  the  nature  of  the  property,  and 
of  the  condition  itself. 

The  principal  case,  so  thoroughly  argued  before  Lord  Thurlow,  by  the  ablest 
counsel  of  the  day,  is  generally  cited  as  the  leading  authority  whenever  the 
question  arises,  whether  a  condition  in  restraint  of  marriage  annexed  to  a  o-ift 
is  or  is  not  valid.  And  in  determining  this  question,  the  nature  of  the  pro- 
perty is  material;  for,  as  is  laid  down  in  the  principal  case,  in  construing  con- 
ditions in  restraint  of  marriage,  annexed  to  a  devise  of  lands,  charges  upon  it, 
powers  to  be  exercised  over  it,  money  legacies  referring  to  such  charges,  and 
money  to  be  laid  out  in  land,  a  court  of  equity  will  follow  the  rule  of  the  com- 
mon law.  If  they  are  annexed  to  a  mere  personal  legacy,  it  will  follow  the 
rules  of  the  Ecclesiastical  Court,  derived  from  the  civil  law,  except  so  far  as 
they  have  been  modified  or  departed  from  by  its  own  decisions.  Unless,  for  the 
purpose  of  maintaining  *uniformity  with  the  decisions,  of  common  law  as  p^,  ^.,-, 
to  land,  and,  of  the  Ecclesiastical  Courts,  as  to  legacies,  there  exists  no  ^  '' 
reason  for  the  distinction:  the  construction  ought  to  be  precisely  the  same  as  to 
both;  but  it  is  now  too  strongly  established  to  be  overthrown  by  anything  short 
of  the  interference  of  the  legislature.  It  was  strongly  disapproved  of  by  Lord 
Rosslyn,  who  thus  accounts  for  its  origin  : — "  In  deciding  questions,"  said  his 
Lordship,  "  that  arise  upon  legacies  out  of  land,  the  Court  very  properly  fol- 
lowed the  rule  that  the  common  law  prescribes  and  common  sense  supports,  to 


392  CONDITIOXS     IX     RESTRAINT     OF     MARRIAGE. 

hold  the  condition  binding  where  it  is  not  illegal.     Where  it  is  illegal,  the 
condition  would  be  rejected,  and  the  gift  pure.     When  the  rule  came  to  be 
applied  to  personal  estate,  the   Court  felt  the  difficulty,  upon  the  supposition 
that  the  Ecclesiastical  Court  had  adopted  a  positive  rule  from  the  civil  law 
upon  legatory  questions,  and  the  inconvenience  of  proceeding  by  a  different 
rule  in  the  concurrent  jurisdiction,  (it  is  not  right  to  call  it  so,)  in  the  resort 
to  this  Court  instead  of  the  Ecclesiastical  Court,  upon  legatory  questions, 
which  after  the  Restoration  was  very  frequent,  and  in  the  beginning  embar- 
rassed the  Court.     Distinction  upon  distinction  was  taken  to  get  out  of  the 
supposed  difl&culty.     How  it  should  ever  have  come  to  be  a  rule  of  decision  in 
the  Ecclesiastical  Court  is  impossible  to  be  accounted  for  but  upon  this  cir- 
cumstance—that, in  the  unenlightened  ages,  soon  after  the  revival  of  letters, 
there  was  a  blind  superstitious  adherence  to  the  text  of  the  civil  law.     They 
never  reasoned,  but  only  looked  into  the  books,  and  transferred  the  rules  with- 
out weighing  the  circumstances,  as  positive  rules  to  guide  them.     It  is  beyond 
ima^-ination,  except  from  that  circumstance,  how,  in  a  christian  country,  they 
should  have  adopted  the  rule  of  the  Roman  law  with  regard  to  conditions  as 
to  marriage.     First,  where  there  is  an  absolute  unlimited  liberty  of  divorce, 
all  rules  as  to  marriage  are  inapplicable  to  a  system  of  religion  and  law,  where 
divorce  is  not  permitted.     Next,  the  favor  to  marriage,  and   the  objection  to 
the  restraint  of  it,  was  a  mere  political  regulation  applicable  to  the  circum- 
stances of  the  Roman  empire  at  that  time,  and  inapplicable  to  other  countries. 
After  the  civil  war,  the  depopulation  occasioned  by  it  led  to  habits  of  celibacy. 
In  the  time  of  Augustus,  the  Julian   law,  which  went  too  far,  and  was  cor- 
rected by  the  Lex  Papia  Popprea,  not  only  offered  encouragement  to  marriage, 
but  laid  heavy  impositions  upon  celibacy.     That  being  established  as  a  rule  in 
restraint  of  celibacy,  (it  is  an  odd  expression,)  and  for  the  encouragement  of 
all  persons  who  would  contract  marriage,  it  necessarily  followed,  that 
L  J-o-'J   *jjQ  person  could  act  contrary  to  it,  by  imposing  restraints  directly 
contrary  to  the  law.     Therefore  it  became  a  rule  of  construction  that  these 
conditions  were  null.     It  is  difficult  to  apply  that  to  a  country  where  there  is 
no  law  to  restrain  individuals  from  exercising  their  own  discretion  as  to  the 
time  and  circumstances  of  the  marriage  their  children  or  objects  of  bounty 
may  contract.     It  is  perfectly  impossible  now,  whatever  it  might  have  been 
formerly,  to  apply  that  doctrine  not  to  lay  conditions  to  restrain  marriage  under 
the  age  of  twenty-one  to  the  law  of  P]ngland;  for  it  is  directly  contrary  to  the 
political  law  of  the  country.     There  can  be  no  marriage  under  the  age  of 
twenty-one  without  the  consent  of  the  parent :"  Per  Lord  Rosslyn,  in  StacJc- 
p(jlc  V.  Beaumont,  3  Ves.  9(5.     And  see  Pcarce  v.  Loman,  3  Ves.  139. 

In  our  law,  however,  there  is  a  marked  distinction  between  conditions  pre- 
cedent and  conditions  subsequent;  for  where  a  condition  is  precedent,  as  the 
estate  cannot  commence  until  the  condition  is  performed,  the  condition  is 
beneficial,  as  creating  an  estate,  and  ought  to  be  construed  favorably.  Where, 
however,  a  condition  is  subsefjuent,  as  it  operates  by  way  of  destruction  of  an 
estate  already  in  existence,  and  being  of  a  penal  nature  it  ought  to  be  con- 


SCOTT     V.     TYLER.  393 


strued  strictly.  In  consequence  of  this  distinction  it  will  be  better  to  consider 
conditions  precedent  and  subsequent,  as  applicable  to  the  subject  now  under 
consideration,  separately. 

Conditions  Precedent  ivith  respect  to  marriage. — With  regard  to  a  devise  of 
land,  {Fnj  v.  Porter,  1  Ch.  Ca.  138;  1  Mod.  300;  Bertie  \.  Lord  Falkland, 
3  Ch.  Ca.  129 ;)  or  of  a  portion  to  be  raised  out  of  land,  or  a  legacy  having 
reference,  and  given  as  an  augmentation,  to  a  portion  to  be  raised  from  land, 
(Eeves  V.  Heme,  5  Vin.  Abr.  343,  pi.  41 ;  Ilerverj  v.  Aston,  1  Atk.  361 ; 
Reynish  v.  Martin,  3  Atk.  330,)  on  condition  of  marrying  with  consent,  it  is 
clear  that  it  will  not  take  effect  unless  the  condition  be  complied  with,  even 
although  there  be  no  gift  over;  for  such  condition  is  valid  at  common  law,  and 
must  be  complied  with. 

And  although  from  the  leaning  towards  the  civil  law,  it  seems  at  one  time  to 
have  been  supposed,  that  where  a  personal  legacy  was  bequeathed  to  a  person 
upon  marriage  under  twenty-one,  or  other  reasonable  period,  with  the  consent 
of  persons  designated  by  the  testator,  the  condition  was  only  in  terrorem,  and 
that  the  legacy  would  vest  upon  marriage,  it  is  now,  it  is  submitted,  settled  by 
the  principal  case,  that  such  legacy  will  not  vest  unless  the  consent  be  first 
obtained ;  for  the  condition  is  precedent ;  and,  as  it  imposes  no  other  restraint 
upon  tlie  liberty  of  marriage  than  is  before  imposed  *or  is  allowed  by  i-^^-inon 
the  law  of  the  land,  it  is  good,  whether  there  be  a  limitation  over  or  L  -■ 
not,  (^Hemmings  v.  3iun]dey,  1  Bro.  C.  C.  304;  1  Cox,  38,  overruling  Undcr- 
u'ood  V.  Mori'is,  2  Atk.  184 ;)  for  although  there  is  a  limitation  over  in  the 
principal  case,  it  is  liot  dependent  upon  a  marriage  without  consent,  but  upon 
dying  under  a  particular  period,  without  marriage  ever  having  taking  place, — 
a  limitation  which  was  disappointed  by  the  marriage  of  the  legatee,  though 
without  consent. 

This  subject  was  much  discussed  in  the  important  case  of  Staclcpole  v. 
Beaumont,  3  Ves.  89.  There  the  testator  devised  his  real  estates  in  remainder 
to  the  use  of  L.  W.,  or  such  person,  if  any,  with  whom  she  should  first  inter- 
marry, "if  before  twenty-one,  then  with  the  consent  of  his  trustees,  or  the 
survivor  of  them,"  for  their  joint  lives  and  the  life  of  the  survivor,  &c. 
Towards  the  end  of  his  will,  he  gave  to  L.  W.  £10,000,  "  payable  and  to  be 
paid  to  her  as  follows  : — £5000  upon  her  marriage  with  such  consent  as  afore- 
said, and  £5000  within  two  years  next  afterwards."  L.  W.,  while  an  infant, 
and  a  ward  of  the  Court,  eloped  and  was  married  in  Scotland,  without  the  con- 
sent of  the  trustees.  Lord  Eosslyn  held,  that  she  was  not  entitled  to  the 
legacy.  "Confined  to  cases,"  said  his  Lordship,  "where  the  restraint  ope- 
rates only  up  to  the  age,  till  which,  by  the  law  and  policy  of  the  country, 
consent  is  necessary,  I  have  no  difiiculty  to  say  there  is  no  authority  to  lead 
the  Court  to  pronounce  a  proposition  so  repugnant  to  that  law,  as  that  such  a 
condition  is  invalid.  In  Scott  v.  Tyler,  there  is  a  very  accurate,  though  not 
a  very  extended,  opinion  of  Lord  Thurlow,  (reported  by  Brown,)  which  car- 
ries conviction  along  with  it.  The  question  is,  not  whether  any  forfeiture  has 
been  incurred,  but  whether  the  parties  to  whom  the  legacy  is  given  have  put 


394  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 

themselves  in  a  situation  to  answer  that  description  of  the  person  to  take. 
There  is  no  gift  here  but  in  the  direction  to  pay;  for  I  cannot  stop  in  the 
middle  of  a  sentence.  He  gives  her  £10,000,  that  is,  in  eifect,  two  sums  of 
£5000,  one  payable  upon  her  marriage  with  consent.  She  has  not  married  with 
consent.  She  has  married  without  it.  Can  she  claim  the  £5000  under  the  will  ? 
I  do  not  see  the  great  importance  of  the  distinction  upon  a  bequest  over  of  the 
legacy.  It  is  one  of  the  points  that  occurred  to  Judges  sitting  here,  to  deliver 
them  from  the  difficulty  arising  from  the  rule  of  the  civil  law,  adopted  without 
seeing  the  ground  and  the  reason  of  applying  it  to  this  country  under  different 
circumstances."  And  see  Clifford  v.  Beaumont,  4  Russ.  325;  Knight  v.  Came- 
ron, 14  Ves  389 ;  but  see  Rcynish  v.  Martin,  3  Atk.  330 ;  1  Wils.  130. 

AYhere  a  legacy  or  annuity  is  given  by  a  parent  to  his  daughter 
L  -^  *provided  she  does  not  marry  before  a  certain  age,  as  for  instance  the 
age  of  twenty-eight,  she  will  not,  it  seems,  be  entitled  to  the  legacy  or  annuity, 
if  she  marry  before  that  age,  even  with  the  consent  of  her  parent.  Yonge  v. 
Fume,  3  Jur.  N.  S.  603,  where  the  Lords  Justices  overruled  the  decision  of 
Sir  John  Romilly,  M.  R.,  reported  2  Jur.  N.  S.  804;  20  L.  J.  Ch.  N.  S.  117. 
There  is  some  doubt,  with  regard  to  a  personal  legacy,  whether  a  condition 
precedent  requiring  consent  generalJij,  without  reference  to  the  age  of  the 
legatee,  is  valid,  unless  it  be  accompanied  by  a  bequest  over  on  marriage  with- 
out consent,  in  which  case  it  is  clearly  valid :  Malcolm  v.  0'  Callaghan,  2 
Madd.  349,  353.  So,  likewise,  is  it  where  there  is  another  legacy  or  provi- 
sion for  the  legatee  in  the  event  of  marriage  without  consent :  Creagh  v. 
Wilwn,  2  Vern.  572 ;  Gillet  v.  Wray,  1  P.  Wms.  284 ;  but  see  Hicks  v. 
Fendarvis,  Freem.  Ch.  Rep.  41 ;  2  Eq.  Ca.  Ab.  212.  In  both  these  instances, 
the  testator  may  be  considered  to  have  shown  it  as  his  intention  by  a  gift  over 
to  another,  in  the  first,  and  by  a  different  gift  to  the  legatee  in  the  second 
case,  that  the  condition  should  not  be  taken  merely  as  in  terrorem. 

Conditions  Subsequent  with  respect  to  marriage. — It  seems  to  be  clearly 
settled,  according  to  the  law  as  administered  in  courts  of  justice  in  this  coun- 
try, that,  if  a  condition  in  restraint  of  marriage  is  general,  and  also  subsequent, 
then  the  condition  is  altogether  void,  and  the  party  retains  the  interest  given 
to  him,  discharged  of  the  condition ;  that  is,  supposing  a  gift  of  a  certain  dura- 
tion, and  an  attempt  to  abridge  it  by  a  condition  in  restraint  of  marriage  gcne- 
ralhj,  the  condition  is  pi'ima  facie  void,  and  the  original  gift  remains :  Morlcy 
V.  Rennoldson,  2  Hare,  579.  And  this  would  be  the  case  either  with  regard 
to  a  devise  of  land  or  the  bequest  of  a  legacy.  In  Morlci/  v.  Rennoldson,  2 
Hare,  570,  the  testator  bequeathed  the  residue  of  his  personal  estate  to  his 
daughter  upon  trust,  for  her  maintenance  and  support  until  she  attained 
twenty-one  or  married  with  the  consent  of  his  trustees  under  that  age ;  and 
upon  her  attaining  such  age' or  her  marriage,  for  her  separate  use,  with  re- 
mainder to  her  children  ;  and  in  case  of  her  death  without  is.sue,  he  bequeathed 
the  same  to  certain  legatees  in  remainder.  The  testator  afterwards,  by  a  codi- 
cil, declared,  that,  in  consequence  of  a  nervous  debility,  his  daughter  was 
unfit  for  the  control  of  herself,  and  his  will  was,  that  she  should  not  marry ; 


SCOTT     V.     TYLER.  395 


and  in  case  of  her  marriage  or  death,  he  gave  the  property  he  had  bequeathed 
to  her  over  to  the  same  legatees  in  remainder.  It  was  held  by  Sir  James 
"Wigram,  V.  C,  that  the  restraint  upon  *marriage  being  general,  the  |-^-|Qr-, 
condition  was  void,  notwithstanding  the  limitation  over.  "  The  ques-  L  '  ^ 
tion  to  be  considered,"  said  his  Honor,  "is  that  upon  which,  in  fact,  I  reserved 
my  judgment, — whether,  according  to  the  true  intent  of  the  second  codicil,  it 
must  be  considered  as  confirming  the  gifts  made  by  the  will,  and  then  seeking 
to  determine  them  on  the  event  of  marriage,  or  whether  it  was  not  a  complete 
substitution  of  new  bequests,  amounting  in  substance  to  a  limitation  during 
celibacy.  "Without  saying  the  case  is  clear,  the  conclusion  to  which  I  have 
come  is^  that  this  codicil  does,  in  point  of  fact,  recognize  and  confirm  the  prior 

bequests  by  the  will In  the   case  of  Malcolm  v.    0'  Callaghan,  (2 

Madd.  349,)  which  was  cited,  marriage  with  consent  was  a  condition  precedent 
by  the  will,  and  the  codicil  giving  the  legacy  to  the  survivor  of  the  daughters 
who  should  die  before  the  age  of  twenty-five  or  marriage  with  consent,  was 
held  to  keep  alive  the  condition.  The  testator,  in  this  case,  has  so  ex- 
pressed himself  as  to  import  an  intention  to  create  a  general  restraint  upon 
the  marriage  of  the  legatee,  and  the  limitation  over  with  that  object  is,  there- 
fore, prima  facie  void I  cannot  do  otherwise  than  hold,  that  this  is  a 

conditional  gift  in  general  restraint  of  marriage,  by  which  the  testator  seeks 
to  cut  down  an  interest  which  he  had  given  by  will ;  and,  therefore,  that  I 
must  hold  this  to  be  a  void  condition."  See  also  Lloyd  v.  Lloyd,  2  Sim.  N. 
S.  255. 

Aad  even  where  the  condition  in  restraint  of  marriage  is  not  general,  but 
against  marriage  with  a  particular  person,  (  W.  v.  B.,  11  Beav.  621 ;  and  see 
Poole  V.  Bott,  11  Hare,  33,)  or  restraining  a  widow  of  a  testator  from  marry- 
ing again,  (3farples  v.  Bainhridge,  1  Madd.  590,)  unless  there  be  a  gift  over 
upon  breach  of  the  condition,  it  will  be  construed  as  in  terrorem  merely. 

Where  a  legacy  is  given  to  a  person  absolutely,  at  a  certain  time,  and  there 
is  a  subsequent  condition  requiring  consent  to  marriage,  the  condition  will  be 
construed  as  in  terrorem,  if  there  be  no  bequest  over,  although  there  be  a 
diminished  gift  to  legatee  in  the  alternative  of  her  marrying  without  consent : 
Garret  v.  Pritty,  2  Vern.  293 ;  3  Mer.  120,  n. 

If  the  power  of  diminishing  the  legacy  is  delegated  to  another  person,  the 
condition  will  be  considered  as  in  terrorem  merely,  in  the  same  manner  as  if  the 
diminution  of  the  legacy  had  been  provided  by  the  testator  in  his  will :  Wheeler 
V.  Bingham,  3  Atk.  364. 

If,  however,  the  legacy  be  limited  over  to  another  person  on  the  marriage 
without  consent,  the  condition  will  not  be  considered  merely  as  in  terrorem, 
but  on  breach  of  it,  the  gift  over  will  take  effect :  Stratton  v.  Grymes,  2  Vern. 
*357;  Barton  v.  Barton,  2  Vern.  308.     And  see  3  Atk.  367. 

Different  reasons  have  been  assigned  by  different  judges  for  the  L  -' 
operation  of  a  devise  over.  Some  have  said  that  it  afforded  a  clear  manifes- 
tation of  the  intention  of  the  testator  not  to  make  the  declaration  of  forfeiture 
merely  in  terrorem,  which  might  otherwise  have  been  presumed.    Others  have 


306  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 


said,  that  it  was  the  interest  of  the  devisee  over  which  made  the  difference ; 
and  that  the  clause  ceased  to  be  merely  a  condition  of  forfeiture,  and  became 
a  conditional  limitation,  to  which  the  Court  was  bound  to  give  effect.  What- 
ever might  be  the  ground  of  decision,  it  was  held,  that  where  the  testator  only 
declared  that,  in  case  of  marriage  without  consent,  the  legatee  should  forfeit 
what  had  been  before  given,  but  did  not  say  what  should  become  of  the  legacy, 
such  declaration  would  remain  wholly  inoperative."  Per  Sir  W.  Grant,  M.  K., 
in  Lloyd  v.  Branton,  3  Mer.  117. 

It  seems  to  be  clear,  as  laid  down  by  Lord  Thurlow,  in  the  principal  case, 
that  a  mere  gift  of  a  residue  will  not  be  considered  as  a  bequest  over,  as  it 
has  been  repeatedly  determined  that  that  will  leave  the  legacy  in  statu  quo, 
as  it  only  prevents  that  which  has  not  been  disposed  of  already,  whatever  be 
its  amount,  from  falling,  by  order  of  law,  to  the  executor  or  next  of  kin  :  Paget 
V.  Hayicood,  cited  1  Atk.  378 ;  Keily  v.  Monck,  3  Ridg.  P.  C.  205,  252 ;  over- 
ruling Amos  V.  Horner,  1  Eq.  Ca.  Ab.  112,  pi.  9.  However  there  is  a  clear 
distinction  between  a  mere  residuary  bequest,  and  a  direction  that  a  legacy 
should  sink  into  and  form  part  of  the  residue ;  for  that  is  tantamount  to  a  gift 
over  to  the  persons  participating  in  the  residue :  Wheeler  v.  Bingham,  3  Atk. 
368.     Aud  see  Lloyd  v.  Branton,  3  Mer.  108,  118. 

Limitations  until  marriage  as  distinguished  from  conditions. — Where  pro- 
perty is  limited  to  a  person  until  marriage,  and  upon  marriage  then  over,  the 
limitation  is  good.  ''It  is  difficult,"  says  Sir  J.  Wigram,  V.  C,  "to  under- 
stand how  this  could  be  otherwise ;  for  in  such  a  case  there  is  nothing  to  give 
an  interest  beyond  the  marriage.  If  you  suppose  the  case  of  a  gift  of  a  certain 
interest,  and  that  interest  sought  to  be  abridged  by  a  condition,  you  may  strike 
out  the  condition,  and  leave  the  original  gift  in  operation ;  but  if  the  gift  is 
until  marriage,  and  no  longer,  there  is  nothing  to  carry  the  gift  beyond  the 
marria"-e.  ...  I  am  satisfied,  from  an  examination  of  the  authorities,  that 
there  is  no  reason  to  alter  my  opinion,  that  a  gift  until  marriage,  and  when 
the  party  marries  then  over,  is  a  valid  limitation.  In  the  case  of  a  widow, 
there  is  no  question  of  the  validity  of  such  a  limitation.  It  was  decided  in 
Jordan  v.  Ilolkham,  Amb.  209,  that,  where  an  *estate  was  given 
1^  J  during  widowhood,  the  estate  was  determinable  by  the  second  mar- 
riage; and  an  annuity  given  during  widowhood  is  also  good :  Barton  v.  Bar- 
ton, (2  Vern.  308.)  In  Scott  v.  Tyler,  (ante,  178,)  Lord  Thurlow,  speaking 
of  the  change  which  the  civil  law  had  undergone  in  its  descent,  observes, 
that,  in  the  Novels,  widowhood  was  excepted,  and  an  injunction  to  keep  that 
state  was  a  lawful  condition.  Scott  v.  Tyler  was  certainly  a  peculiar  case ; 
but,  referring  to  the  canon  law.  Lord  Thurlow,  citing  Godolphin,  says,  that 
the  use  of  a  thing  may  be  given  'during  celibacy  for  the  purpose  of  interme- 
diate maintenance,  and  will  not  be  interpreted  maliciously  to  a  charge  of  re- 
straining marriage,'  (ante,  17^,)  affirming,  therefore,  the  general  doctrine,  that 
a  gift  until  marriage  would  be  good.  In  the  case  of  Loio  v.  Peers,  C.  J. 
Wilmot's  Cases,  309,  Chief  Justice  Wilmot  goes  through  the  cases  upon  the 
subject,  and  shows,  that,  according  to  his  apprehension  of  the  law,  a  gift  until 


SCOTT     V.     TYLER.  897 


marriage  is  perfectly  good.  He  notices  the  case  of  college  fellowships,  of  cus- 
toms of  manors,  of  limitations  of  estates  during  celibacy,  and  the  express  dis- 
tinction between  limitations  and  conditions ;  and  he  remarks,  that  that  distinc- 
tion is  recognized  and  established,  and  that  the  common  law  allows  it.  I  may 
refer  to  the  cases,  and  amongst  them,  to  the  later  ones  of  Bird  v.  ITunsdon 
(2  Swanst.  342,)  and  Marj^Ics  v.  Bainhridye,  (1  Madd.  590,)  as  affirming  the 
same  proposition.  In  those  cases,  all  the  reasons  the  Court  referred  to  were 
superfluous,  if  a  limitation  during  celibacy  is  not  good.  The  Court  mio-ht 
have  taken  the  short  course,  and  have  said  that  it  was  in  the  nature  of  a 
restraint,  and  therefore  could  not  be  supported  :"  3IorIei/  v.  Rennoldson  2 
Hare,  580. 

In   Wehh  V.  Grace,  2  Ph.  701,  A.  covenanted  to  pay  to  E.  C.  during  her 
life,  subject  to  the  proviso  thereinafter  contained,  an  annuity  of  £40,  the  pro- 
viso being,  that  in  case  E.  C.  should  at  any  time  thereafter  happen  to  marry, 
the  annuity  should  thenceforth  be  reduced  to  £20  only,  which  sum  should,  in 
such  case,  be  paid  and  payable  to  E.  C.  from  the  time  of  her  marriage,  for  the 
remainder  of  her  life.     E.  C.  having  married.  Lord  Cottenham,  reversing  the 
decision  of  Sir  L.  Shadwell,  V.  C,  (reported  15  Sim.  384,)  held  her  only  to 
be  entitled  to  the  annuity  of  £20.     "  The  question,"  observed  his  Lordship, 
"  turns  upon  the  construction  of  the  covenant ;  for  there  really  cannot  be  any 
doubt  as  to  the  rule  of  law.     The  questions  which  have  arisen  as  to  conditions 
subsequent  in  restraint  of  marrying  do  not  appear  to  me  to  apply.     There  can 
be  no  doubt  that  marriage  may  be  made  the  ground  of  a  limitation  ceasing  or 
commencing.     It  is  unnecessary  to  refer  to  authorities  for  this  *pur-  rif-^QQ-, 
pose.     Richards  v.  Balcer,  (2  Atk.  321,)  Sheffield  v.  Lord  Orrery,   ^       ^ 
(3  Atk.  282,)  Gordons.  AdoJphus,  (3  Bro.  P.  C.  306,  Toml.  edit.,)  were  cited 
in  the  argument.    If,  then,  this  grant  is  a  grant  of  £40  per  annum  until  mar- 
riage, and,  from  that  event  happening,  of  £20  per  annum  for  life,  there  can  be  no 
doubt  but  that  such  a  gift  is  lawful,  and  that,  after  marriage,  there  can  be  no 
demand  for  the  £40  per  annum.     The  claim  is  grounded  upon  contract  and 
obligation  on  the  part  of  the  grantor ;  the  parties  claiming  must  therefore 
prove  that  their  claim  is  within  the  terms  of  the  contract  and  obligation. 
Is  there,  in  the  covenant,  any  contract  or  obligation  to  pay  £40  per  annum 
after  the  marriage  of  E.  C.  ?     The  argument  in  favor  of  the  claim  assumes 
that  there  is  an  unqualified  grant  of  an  annuity  of  £40  per  annum  for  life,  and 
an  attempt  to  defeat  the  gift  by  an  illegal  condition  subsequent.     This  propo- 
sition, I  think,  fails  in  all  its  parts ;  for  there  is  not  any  unqualified  gift  of  an 
annuity  of  £40  for  life  ;  the  contract  and  obligation  is,  to  pay  to  E.  C.  durin"- 
her  life,  subject  to  the  proviso  hereinafter  contained,  an  annuity  of  £40  at 
certain  times  specified.     The  contract  and  obligation  is  not  absolute  and 
unqualified,  but  explained,  qualified,  and  bound  by  the  proviso,  and  must  be 
construed  precisely  in  the  same  manner  as  if  the  terms  of  the  proviso  had  been 
introduced  into  and  made  part  of  the  contract  and  obligation.     It  is  therefore, 
to  pay  £40  per  annum  to  her  during  so  much  of  her  life  as  she  shall  remain 
unmarried,  which  brings  the  case  within  the  unquestioned  rule  of  law,  as 


398  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 


acted  upon  in  tlie  cases  referred  to.  One  of  them,  indeed — Sheffield  v.  Lord 
Orrery — is,  upon  this  point,  stronger  than  the  present ;  for  there  was  a  gift 
for  life,  without  any  qualification  in  the  terms  of  the  grant,  but  a  subsequent 
condition,  giving  the  property  over  in  the  event  of  marriage ;  and  Lord  Hard- 
wicke  said,  that  the  gift  over  was  to  take  effect  on  the  marriage.  There  is 
another  way  in  which  this  may  be  viewed  equally  fatal  to  the  claim.  The  con- 
tract and  obligation  is,  to  pay  a  certain  sum  at  certain  stipulated  periods  during 
the  life  of  E.  C  ;  but  she  is,  by  the  proviso,  at  each  of  those  periods  to  be 
qualified  to  receive  it  by  the  fact  of  not  being  married.  Can  she  claim  any  of 
such  payments,  though  disqualified  by  the  fact  of  marriage  ?  The  condition, 
therefore,  if  there  be  one,  is  precedent,  and  not  subsequent." 

In  Heath  v.  Lewis,  (3  De  G.  Mac.  &  G.  954,)  a  testatot  bequeathed  an 
annuity  to  a  single  lady  (if  living  and  unmarried  at  the  death  of  a  prior  annui- 
tant) '^  during  the  term  of  her  natural  life,  if  she  shall  so  long  remain  unmar- 
ried ;"  it  was  held  by  the  Lords  Justices  to  be  a  limitation  as  distinguished 
-.  from  a  *condition,  and  that  the  annuity  ceased  when  the  lady  mar- 
^  ried.     ''  It  must  be  agreed  on  all  hands,"  said  Lord  Justice  Knight 

Bruce,  "  that  it  is,  by  the  English  law,  competent  for  a  man  to  give  to  a 
siuf^le  woman,  an  annuity  until  she  shall  die  or  be  married,  whichever  of 
these  two  events  shall  first  happen.  All  men  agree  that  if  such  a  legatee 
shall  mari-y,  the  annuity  will  thereupon  cease.  But  this  proposition  has  been 
advanced — a  proposition  which,  if  true  (and  I  do  not  deny  its  truth,)  is  per- 
haps not  creditable  to  this  English  law — that  if  a  man  give  an  annuity  to  a 
woman,  who  has  never  married,  for  life,  and  afterwards  declares  that,  if  she 
shall  marry,  the  annuity  shall  be  forfeited,  the  condition  is  void,  and  she  may 
yet  marry  as  often  as  she  will,  and  retain  her  annuity.  Such  is  the  state  of 
our  English  law  on  this  subject  said,  and  perhaps,  truly  to  be ;  and  the  ques- 
tion argued  before  us  has  been,  to  which  of  these  two  classes  the  gift  in  this 
will  belong,  being  a  gift  of  an  annuity  to  a  single  lady  '  during  the  term  of 
her  natural  life,  if  she  shall  so  long  remain  unmarried.'  This  language  being 
the  technical  and  proper  language  of  limitation  as  distinguished  from  condi- 
tion, long  known  to  the  English  law,  and  familiar  to  us  all.  Both  upon  pre- 
cedent and  reason,  upon  principle  and  authority,  I  am  of  opinion  that  this  is  a 
limitation  as  distinguished  from  a  condition,  and  that  the  annuity  ceased 
when  the  lady  married." 

In  the  recent  case  of  Cooper  v.  Cooper,  G  Ir,  Ch.  Bep.  217,  a  testator  by  his 
will,  dated  in  1841,  devised  lands  to  trustees  upon  trust  for  B.  for  life,  "  pro- 
vided she  does  not  marry,  and  from  and  after  her  decease  or  second  marriage," 
for  other  persons.  In  1847,  the  testator  married  B.,  and  afterwards  made  a 
codicil  to  his  will  which  had  the  effect  of  republishing  it.  It  was  held  by 
Lord  Chancellor  Brady,  that,  the  devise  to  B.  took  effect  notwithstanding  her 
marriage  to  the  testator.  *'  Looking,"  said  his  Lordship,  "  at  what  took 
place,  and  at  the  fact  that  she  had  married  the  testator  himself,  it  would  be  a 
very  strong  thing  to  decide  that  where,  by  his  own  act,  he  induced  her  to 
break  the  condition,  she  was  to  be  deprived  of  all  this  estate.     I  must,  how- 


SCOTT     V.     TYLER.  399 


ever,  treat  the  codicil  as  a  republication,  and  therefore  as  declaring  that,  at 
all  events,  at  the  time  of  its  execution,  it  vras  his  will  that  she  should  take 
this  property  unless  she  should  afterwards  marry."  See  also  in  re  Corkers  v. 
3Iinors,   1  Ir.  Jur.  316  ;    West  v.  Kerr,  6  Ir.  Jur.  141. 

As  to  Consent  to  Marriage. — A  marriage  in  the  lifetime  of  the  father,  with 
his  consent,  or  even  his  subsequent  approbation,  is  equivalent  to  a  marriage 
after  his  death  with  the  consent  of  trustees.  Thus,  in  Clarke  v.  Berkeley,  2 
*Vern.  720,  under  a  devise  upon  trust  to  convey  to  the  testator's  r:(:iQA-i 
daughter,  in  case  she  married  loith  the  consent  of  two  of  the  trustees 
and  her  mother,  but,  if  she  died  before  marriage,  or  married  without  such  con. 
sent,  to  other  uses;  the  daughter  having  married  in  her  father  s  lifetime,  with 
his  consent,  Lord  Cowper  decreed  a  conveyance  according  to  the  will,  declaring 
that  the  condition  was  dispensed  with,  by  having  the  testator's  own  consent, 
which  was  more  to  be  regarded  than  any  consent  of  trustees,  to  whom  he  had  dele- 
gated a  power  to  consent,  in  case  of  marriagd  after  his  decease.  So,  in  Coffin  v. 
Coo-per,  cited  1  V.  &  B.  481,  where  a  testator  gave  the  residue  of  his  property 
to  his  children  at  twenty-one,  adding  a  proviso,  that  if  any  of  his  daughters 
married  with  the  consent  of  his  trustees,  such  daughter  was  to  take  imme- 
diately two-thirds  of  her  portion,  the  other  third  to  be  settled  to  her  separate 
use;  if,  without  such  consent,  then  making  a  different  disposition.  One  of 
the  daughters  married  in  the  testator's  lifetime,  without  his  consent,  but  he 
afterwards  approved  of  the  marriage.  The  Court  considered  the  clause  sub- 
stantially complied  with.  See  Farnell  v.  Lyon,  1  V.  &  B.  479 ;  Wheeler  v. 
Warner,  1  S.  &  S.  304;  Coventry  v.  Higgins,  14  Sim.  30.  And  in  Crom- 
mclin  V.  Crommelin,  3  Ves.  227,  Lord  Rosslyn,  upon  the  same  principle, 
held  a  condition  in  a  will  requiring  the  consent  of  trustees  to  marriage,  not  to 
be  applicable  to  the  second  marriage  of  a  daughter  who  had  married  between 
the  date  of  the  will  and  the  death  of  the  testator,  and  was  a  widow  at  his 
death.  "  It  would,"  he  observed,  *'  be  the  absurdest  of  all  constructions,  that 
a  will,  intended  to  provide  for  a  marriage,  and  enable  the  wife  to  provide  for 
the  children,  must,  by  these  conditions,  so  inapplicable  to  the  case  of  a 
daughter  married  and  having  children,  compel  her  to  marry  again  for  the 
sake  of  the  children  by  the  first  marriage." 

"Where  no  particular  mode  is  prescribed  for  trustees  to  give  their  consent, 
it  will  be  presumed  that  they  have  given  it,  where  they  have  allowed  court- 
ship and  marriage  to  take  place  without  expressing  their  dissent,  especially  if 
from  any  fraudulent  or  corrupt  motive  they  have  withheld  actual  consent. 
Thus,  in  Mesgrctt  v.  Mesgretf,  2  Vern.  580,  H.  T.  gave  to  Maria,  her  only 
child,  £300 ;  but,  if  she  married  before  twenty-one,  without  the  consent  of 
her  executors,  Mesgrett,  Tanden,  and  Chawell,  it  was  to  go  to  the  children  of 
her  sister,  the  second  wife  of  Mesgrett.  IMaria,  being  eleven  years  old  at  the 
death  of  her  mother,  lived  for  some  time  with  Chawell,  and  was  there  courted 
by  the  son  of  Mesgrett  by  a  former  marriage ;  and  afterwards,  Maria  removed 
to  the  house  of  Mesgrett,  where  the  marriage  was  *had  with  his  privity.  r*i  qi  n 
The  other  executors  having  notice  the  match  was  being  carried  on, 


400  CONDITIONS     IN     RESTRAINT     OF     MARRIAG'E. 


did  not  contradict  or  disapprove  of  it,  or  remove  the  young  woman,  as  they 
might  have  done.  Upon  pretence  that  the  legacy  was  forfeited,  Mesgrett 
claimed  it  for  his  children  by  his  second  wife ;  hut  Lord  Keeper  Cowper  held, 
that  Maria  and  her  husband  were  entitled  to  the  legacy,  "  it  plainly  appearing 
there  was  at  least  a  tacit  consent,  and  the  will  not  prescribing  the  manner  of 
the  consent  to  be  in  writing,  or  otherwise  ;  and  looked  upon  it  as  a  fraud  in 
Meso'rett  in  promoting  the  marriage,  and  afterwards  to  pretend  a  forfeiture  for 
want  of  a  consent  to  gain  the  legacy  to  his  children  by  his  last  wife."  Lord 
Eldou,  approving  of  this  case,  in  Clarke  v.  Parker,  19  Ves.  12,  says,  never- 
theless, that  it  would  be  difficult  to  support  it,  if  consent  in  irriting  had  been 
required,  and  that  the  Lord  Keeper  laid  stress  on  the  circumstance,  that,  as 
writing  was  not  required,  consent  might  be  signified  by  acts,  without  a  formal 
consen°.  However,  in  Lord  Stranye  v.  Smith,  Amb.  2Go,  although  the 
tvritten  consent  of  the  mother  was  made  requisite,  it  was  held,  by  Lord  Hard- 
wicke,  that  the  mother  having  m'ade  the  first  offer  to  Lord  Strange,  received 
him  at  her  house,  encouraged  his  addresses  to  her  daughter,  and  treated  with 
him  and  his  father  about  the  settlement,  had  thereby  given  her  consent, 
(although  it  does  not  appear  by  the  report,  that  it  was  in  writing ;)  and  that 
she  could  not  withdraw  it,  on  account  of  the  offence  she  took  at  Lord  Strange, 
for  some  reflections  which  she  heard  that  he  had  made  upon  her.  Lord  Eldon, 
although  he  cites  this  case  in  Clarke  v.  Parker,  does  not  notice  that  the  con- 
sent was  required  to  be  in  writing.  In  Worthinrjton  v.  Evans,  1  S.  &  S.  IGo, 
where,  however,  a  letter  written  by  the  trustee  the  day  before  the  wedding, 
was  held  to  be  a  sufficient  consent  in  writing,  Sir  John  Leach,  V.  C,  said, 
"  that  if  there  had  not  been  such  a  letter,  inasmuch  as  the  formal  consent  in 
writing  would  have  been  executed  by  him,  but  for  the  accidental  delay  occa- 
sioned by  the  other  trustee,  and  not  from  any  change  of  purpose,  the  Court 
would  have  considered  his  consent  to  have  been  substantially  given,  according 
to  the  will ;  because  he  had  expressed  his  full  approbation  of  the  marriage,  and 
only  did  not  sign  it  for  a  reason  personal  to  himself. 

Courts  of  equity  are  disposed  to  put  a  favorable  construction  upon  the  ex- 
pressions of  trustees  where  consent  is  requisite,  so  as  to  prevent  a  breach  of 
condition,  especially  after  a  mutual  attachment  has  been  suffered  to  grow  up 
under  their  sanction.  Thus,  in  J)a/ei/  v.  Doushouverie,  2  Atk.  273,  where 
the  consent,  (not  in  writing,)  of  three  trustees,  or  the  major  part  of  them,  was 
r*l091  necessary,  *a  proposal  was  made  by  the  intended  husband  for  a  scttle- 
L  "  ment  to  one  of  the  trustees  who  communicated  it  to  his  co-trustees; 
and  one  of  the  trustees,  writing  on  behalf  of  the  other,  said,  "  If  the  father 
will  make  the  settlement  proposed,  we  believe  the  young  folks  are  too  far 
engaged  for  us  to  attempt  to  break  off  the  match,  and,  therefore,  we  shall  be 
obliged  to  consent  to  it."  The  trustees  afterwards  refused  their  consent,  unless 
the  lady's  portion  was  settled  in  a  particular  manner,  and  the  parties  were  mar- 
ried ''by  John  Gaynam,  the  famous  Fleet  parson."  Lord  TLnrdwicke,  never- 
theless, held,  that  the  marriage  was  substantially  with  the  consent  of  the  trus- 
tees.    So,  in  D'Afjuilar  v.  Drinkwater,  2  V.  &  13.  225,  where  the  marriage 


SCOTT     V.     TYLER.  401 


was  to  be  with  the  consent  of  three  trustees,  first  obtained  in  writing,  it  was 
held  that  the  consent  of  all  was  duly  obtained,  although  two  of  them  only  had 
expressly  given  their  consent;  the  other,  only  in  general  terms,  stated,  in  a 
letter,  that  ^*  he  would  never  stand  in  the  way  of  any  arrangement  by  the  co- 
trustees," and  advised  a  settlement,  he  having  previously  encouraged  the  pro- 
posal, and,  though  fraud  was  not  imputed,  having  a  prospect  of  benefit  from 
the  forfeiture.  See,  also,  Le  Jeune  v.  Budd,  6  Sim.  441.  See,  however, 
Lord  Eldon's  observations  on  Daley  v.  Deshourerie,  in  Clarice  v.  Parher,  19 
Ves.  12,  IS. 

In  Pollock  V.  Croft,  1  Mer.  181,  where  there  was  a  bequest  of  personal 
estate  to  A.,  provided  she  married  with  the  consent  of  B.,  but  if  she  married 
without  such  consent,  then  to  C,  Sir  William  Grant,  M.  E,.,  held,  that  a 
general  permission,  given  by  B.  after  A.  attained  twenty-one,  to  contract  mar- 
riage as  she  might  think  fit,  and  subsequent  approbation  of  a  marriage  con- 
tracted under  such  general  permission  without  his  knowledge  was  a  sufficient 
compliance  with  the  requisition ;  but  as  the  consent  only  appeared  by  the 
answer  of  B.,  which  could  not  be  read  against  C.,  who  was  an  infant,  a  refer- 
ence was  directed  to  the  Master  to  inquire  what  consent  was  given  by  B. 

The  Court  has  assumed  the  power,  although  it  be  a  dangerous  one,  of 
examining  whether  the  refusal  of  consent  by  a  trustee  proceeds  from  any 
vicious,  corrupt,  or  unreasonable  cause  :  Dashicood  v.  Lord  Bidkelci/,  10  Ves. 
245  ;  Clarke  v.  Parker,  19  Yes.  18.  But  even  if  the  person  who  refuses  his 
consent  be  the  devisee  over,  he  is  not  obliged  to  show  his  reason  for  dissent — 
it  lies  upon  the  party  requiring  assent  to  show  that  it  has  been  unreasonably 
refused ;  ''  for,"  as  observed  by  Lord  Eldon,  "  the  testator  must  know  that  he 
has  made  necessary  the  consent  of  a  person  who  has  an  interest :"  Clarke  v. 
Parker,  19  Ves.  22.  See,  however,  the  remarks  of  Lord  Hardwicke  in  Her- 
vey  v,  Aston,  *Atk.  381;  and  of  Lord  Mansfield  in  Lowj  v.  Dennis,  r^-inqi 
4  Burr.  2052.  L  ^"^J 

If  a  trustee,  whose  consent  to  a  marriage  is  required,  refuse  to  interfere, 
either  by  consenting  or  objecting  to  a  proposed  match,  the  Court  will  refer  it 
to  the  Master  to  inquire  and  state  to  the  Court  whether  the  marriage  is  a  proper 
one :    Goldsmid  v.  Goldsmid,  Gr.  Coop.  225. 

If  consent  be  once  obtained,  unless  by  fraud  or  misrepresentation,  {Dillon 
V.  Harris,  4  Bligh.  321,)  it  cannot  without  a  sufficient  reason  be  withdrawn, 
especially  if  the  person  so  withdrawing  his  consent  would  derive  a  benefit  from 
a  marriage  without  consent :  Lord  Strange  v.  Smith,  Amb.  263 ;  Merry  v. 
Ryves,  1  Eden,  1  j  Le  Jeune  v.  Budd,  6  Sim.  441.  In  Dashicood  v.  Lord 
Bulkeley,  10  Ves.  230,  the  refusal  of  the  intended  husband  to  make  a  settle- 
ment was  held  by  Lord  Eldon  a  sufficient  reason  for  the  trustees  withdrawino- 
their  assent  to  the  marriage,  which  they  had  given  upon  condition  of  his 
making  it. 

When  the  consent  of  all  the  trustees  is  required,  the  consent  of  two,  without 
the  third  being  consulted,  is  insufficient,  as  there  is  a  discretion  in  him  as  well 
as  the  others;    Clarke  v.  Parker,  19  Ves.  1;  but  the  consent  of  one  of  the 

VOL.  II. — 26 


402  CONDITIONS     IX     RESTRAINT     OF     MARRIAGE. 


executors  or  trustees  who  renounced  or  never  acted,  would  according  to  the 
more  recent  authorities  be  unnecessary,  the  authority  of  consent  being  annexed 
to  the  office.  See  Clarke  v.  Parker,  19  Ves.  15,  16;  Wortliington  v.  Evans, 
1  S.  &  S.  165.  However,  in  Graydon  v.  Hicks,  2  Atk.  16,  where  the  mar- 
ria'^e  was  to  be  with  the  consent  of  the  executor  Graydon,  the  executor  re- 
nounced, and  administration  was  granted  to  one  Timewell,  a  marriage  took 
place  without  any  consent;  but  it  was  objected,  that  it  was  not  a  breach  of  the 
condition,  because  Graydon  had  renounced,  and  administration  with  the  will 
annexed  had  been  granted  to  Timewell ;  but  Lord  Hardwicke  was  of  opinion, 
that  the  objection  was  not  well  grounded,  and  that  the  legacy  was  forfeited; 
as  the  word  "  executor"  was  a  description  of  every  person  who  should  be  admi- 
nistrator ;  and  that  it  was  a  power  not  annexed  to  the  office  of  executor,  but 
independent  from  the  rest  of  his  duty  as  executor. 

'<  Where  the  condition  has  become  impossible  by  the  person  dying  whose 
consent  was  necessary  before  marriage,  it  is  an  excuse :"  per  Lord  Hardwicke, 
in  Graydon  v.  Hicks,  2  Atk.  16.  And  see  Aislahie  v.  Rice,  3  Madd.  256  ; 
Grant  v.  Dyer,  2  Dow,  93,  So,  where  a  legacy  was  bequeathed  to  a  lady 
upon  condition  of  her  marrying  with  the  consent  of  two  persons  who  were  also 
executors;  on  the  death  of  one  of  them,  the  condition  being  subsequent  and 
become  impossible,  she  might  marry  without  the  consent  of  the  survivor; 
Peyton  v.  Bury,  2  P.  Wms.  626;  *but  see  Jones  v.  Earl  of  Suffolk, 
[*194]  J  j3j.^j   c   q    529. 

The  subsequent  approbation  of  persons  whose  consent  is  necessary  to  a  mar- 
riao-e,  is  immaterial,  because  it  cannot  amount  to  a  performance  of  a  condition, 
or  dispense  with  a  breach  of  it  :  Reynisli  v.  Martin,  3  Atk.  330  ;  Fry  v.  Por- 
ter, 1  Ch.  Ca.  138 ;  1  Mod.  300.  Lord  Hardwicke,  in  Burletan  v.  Humphrey, 
Amb.  256,  where  the  marriage  was  to  be  with  ''the  consent  or  approbation" 
of  a  trustee,  who  did  not  give  his  approbation  until  a  mouth  after  the  mar- 
riaf'e,  struggles  to  distinguish  between  consent  and  approbation ;  and  the  con- 
dition being  in  the  latter  part  of  the  clause  expressed  in  the  alternative,  inclined 
to  the  opinion  that  the  subsequent  approbation  would  do.  ''  Lord  Thurlow, 
however,"  says  Lord  Eldon,  "  denied  that,  as  he  did  not  see  why  subsequent 
approbation,  if  sufficient  after  eleven  months,  would  not  do  at  any  time  during 
the  whole  life  of  the  trustee;  during  which  it  must  be  quite  uncertain,  whether 
the  marriage  was  had  in  conformity  with  the  condition  or  not:"  Clarke  \. 
Parker,  19  Ves.  21. 

And  where  the  condition  was,  that  the  party  should  not  marry  against  the 
consent  of  the  trustees,  a  marriage  contracted  without  their  knowledge,  but 
with  their  subsequent  approbation,  was  held  a  breach  of  the  condition  :  Long 
V.  Rtcketts,  2  S.  &  S.  179. 

Persons  will  not  be  permitted  to  allow  a  long  time  to  elapse  without  making 
any  claim,  and  then  to  insist  on  a  forfeiture  and  throw  on  the  persons  entitled 
the  burthen  of  proving  that  there  has  been  none.  Thus,  where  a  legacy  was 
given,  conditional  on  the  consent  and  approbation  of  the  trustees,  and  the  party 
entitled  in  default  of  consent  made  no  claim  until  twenty-eight  years  had  elapsed 


SCOTT     V.     TYLER.  403 


after  tlie  marriage,  and  the  trustees  and  tlie  legatee  were  all  dead,  it  was  held 
by  Sir  J.  Romilly,  M.  R.,  altliough  there  was  no  distinct  proof  of  consent,  yet 
that  it  was  to  be  presumed,  under  the  circumstances  of  the  case.  "  The 
ground,"  said  his  Honor,  "  I  proceed  on  is,  that  after  the  lapse  of  twenty- 
eight  years  from  the  marriage,  and  after  the  death  of  the  trustees,  everything  is 
to  be  presumed  in  favor  of  the  legatee.  That  is  the  ground  on  which  I  proceed 
in  this  case.  If  this  contest  had  taken  place  immediately  after  the  marriage 
had  occurred,  and  the  fact  before  me  had  been,  that  the  trustees  knew  nothing 
about  it,  and  gave  their  approbation  subsequently,  I  should  be  of  opinion,  that 
the  legacy  was  forfeited."     Re  Birch,  17  Beav.  358. 

Where  a  legacy  is  to  vest  or  be  paid  at  a  particular  age,  and  then  there  is  a 
clause  of  forfeiture  on  marriage  without  consent,  such  clause  will  be  construed 
as  having  relation  to  a  marriage  under  the  specified  age  :  Lloyd  v.  Branton, 
3  Mer.  116;    Oshorn  v.  Brown,  5  *Ves.  527.     And  see  Desbocly  v. 
BoyviUe,  2  P.  Wms.  547.  i^'l'^o] 

In  0'  Callaglian  v.  Cooper,  5  Ves.  117,  a  trust  term  was  limited  to  trustees, 
to  raise  out  of  real  estate  portions  for  daughters,  to  be  paid  on  marriage,  upon 
condition  that  they  should  be  married  with  consent  of  their  mother,  or,  after 
her  death,  of  the  trustees,  and  that  the  husband  should  previously  make  a 
settlement.  A  marriage  having  taken  place  with  the  consent  of  the  mother 
and  the  privity  of  the  trustee,  but  by  the  neglect  of  the  trustee,  without  any 
settlement,  the  husband  having,  before  and  after  the  marriage,  offered  all  that 
was  required  of  him,  and  being  ready  to  execute  a  settlement  within  the  con- 
dition, relief  was  given  upon  those  circumstances,  by  raising  the  portion  upon 
the  execution  of  the  settlement. 

Where  the  testator  has  not  made  the  consent  of  other  persons  requisite,  the 
question  may  arise,  when  he  has  imposed  any  condition  with  respect  either  to 
the  time  of  marriage,  or  against  marriage  with  a  particular  person,  how  far  by 
his  own  consent  to  the  marriage  he  will  be  held  to  have  dispensed  with  the 
condition. 

In  Smith  v.  Coiodery,  2  S.  &  S.  358,  a  testator  bequeathed  his  residuary 
personal  estate  unto  his  executors,  upon  trust  to  pay  and  divide  the  same 
equally  amongst  his  children  Susannah,  Mary,  Ann,  Fanny,  and  William, 
when  they  should  respectively  attain  twenty-one,  or  on  the  day  of  marriage, 
the  interest  in  the  meantime  to  be  applied  for  their  maintenance,  "except  his 
daughter  Mary,  whose  share  the  testator  directed  should  be  paid  to  her  upon 
the  day  of  her  intermarriage  with  any  other  person  excepting  H.  T.,  and  the 
interest  in  the  meantime  to  be  applied  for  her  maintenance."  And  the  testa- 
tor directed  that  "in  case  his  daughter  Mary  should,  at  any  time  thereafter, 
intermarry  with  H.  T.,  then  upon  trust  to  pay  and  divide  her  share  of  the 
residue  of  his  personal  estate,"  unto  and  amongst  his  other  children.  The 
testator  died  on  the  1st  of  June,  1795,  but  his  daughter  had,  during  the  tes- 
tator's lifetime,  and  with  his  consent,  married  H.  T.  It  was  held,  by  Sir 
John  Leach,  Y.  C,  that  Mary  was  entitled  to  her  legacy.  "  The  testator,'' 
said  his  Honor,  "  introduces  a  condition  in  his  will  to  prevent  the  marriage  of 


404  CONDITIONS     IN     RESTEAINT     OF     MARRIAGE. 

his  daughter  Mary  with  II.  T.  After  the  making  of  his  will,  his  daughter 
married  II.  T.  -with  his  express  consent  and  approbation ;  and  the  condition  is 
thus  dispensed  with.  In  coming  to  this  conclusion,  I  follow  the  cases  of 
Clarice  v.  Berkeley ;  Cromelin  v.  Cromclin,  and  Farncll\.  Lyon." 

In  Bulloch  V.  Bennett,  1  Jur.  N.  S.  5G7 ;  25  L.  T.  230,  a  testator  bequeathed 
a  sum  of  money  upon  trust  for  his  daughter,  then  a  widow,  ''for  life,  or  witil 
her  marriage,  and  after  her  decease  or  marriage,  which  should  first  happen," 
r*lon  ^PO'^  *trust  for  the  children  of  his  daughter  by  her  first  and  second 
husbands,  both  then  deceased.  Between  the  date  of  the  will  and  the 
testator's  death,  his  daughter  married  a  third  husband,  with  her  father's 
knowledge  and  approval,  but  he  died  without  having  republished  his  will.  It 
was  held  by  the  Lords  Justices,  reversing  the  decision  of  Sir  W.  Page  Wood, 
V.  C,  (reported  1  K.  &  J.  315,)  that  the  interest  of  the  daughter  had  ceased^ 
and  that  the  gift  over  took  effect.  Their  Lordships  thought  that  the  case  was 
not  affected  by  the  24th  section  of  the  Wills  Act,  (1  Vict.  c.  26,)  which  they 
considered  made  the  will  speak  as  if  executed  immediately  before  the  death 
of  the  testator,  with  reference  to  the  real  and  personal  property  comprised  in 
it,  and  not  with  reference  to  the  objects  of  his  bounty  who  are  to  take  the  real 
and  personal  estate.  "The  A^ice-Chancellor,"  said  Lord  Justice  Turner, 
"  seems  to  have  placed  some  reliance  on  the  approval  of  the  third  marriage  by 
the  testator.  But  this  circumstance  does  not  appear  to  me  to  be  material. 
He  mia-ht  approve  of  the  marriage,  and  still  intend  that  the  disposition  over 
in  his  will  should  take  effect.  It  seems  probable  that  this  was  his  intention, 
for  the  disposition  is  for  or  in  favor  of  the  children  of  her  former  marriages, 
for  whom  the  daughter  might  be  disabled  from  providing  by  the  circumstances 

of  her  third  marriage Some  authorities  were  referred  to  on  the  part 

of  the  lady,  in  the  course  of  the  argument,  that  were  cases  in  which  the  pro- 
vision of  the  will  applied  to  a  marriage  xcith  the  consent  of  the  trustees,  and  in 
which  the  marriage  afterwards  took  place  in  the  lifetime  of  the  testator ;  and 
it  was  held  that  the  legatees  were  entitled,  the  marriage  having  taken  place 
with  the  consent  of  the  testator.  These  cases,  however,  do  not  seem  to  touch 
the  present.  The  plain  intention  in  such  cases  is  to  provide  for  the  event, 
not  of  any  marriage,  but  of  an  improvident  marriage,  and  the  consent  pre- 
viously given  by  the  testator  shows  that  he  did  not  consider  it  an  improvident 
marriao-e.  But  here  the  provision  applies  to  whatever  marriage  the  daughter 
may  contract,  provident  or  improvident." 

In  Yonge  v.  Furse,  3  Jur.  N.  S.  G03,  the  testator  gave  his  daughter  an  an- 
nuity of  £50  a  year  for  her  life,  "  providing  that  she  did  not  marry  before  she 
arrived  at  the  age  of  twenty-eight."  Subsequently,  on  being  applied  to  for 
his  consent  to  his  daughter's  marriage,  she  being  then  under  twenty-one  years 
of  age,  the  testator  wrote,  "  You  have  may  qualified  consent;  but  I  must  hear, 
of  course,  from  my  daughter,  before  I  can  make  that  absolute."  The  daughter 
wrote  to  the  testator,  giving  her  full  consent.     The  testator,  who  was  danger- 

^,^»-,  ously  ill,  replied,  acknowledging  her  letter,  but  that  he  could  appoint 
'-       '-^  *no  time  for  business.     He  died  the  following  day.     The  daughter 


SCOTT     V.     TYLER.  40o 


married  after  the  death  of  the  testator,  and  under  the  age  of  twenty-eight 
years.  It  was  held,  by  the  Lords  Justices  of  the  Court  of  Appeal,  overruling 
the  decision  of  Sir  John  Eomilly,  M.  R.,  (reported  2  Jur.  N.  S.  864,)  that 
the  daughter  was  not  entitled  to  the  annuity.  Lord  Justice  Knight  Bruce  is 
reported  to  have  said,  that  "  if  the  condition  was  precedent,  he  was  of  opinion 
that  it  was  valid,  and  had  become  impossible  to  be  performed.  If  it  was  sub- 
sequent, he  thought  it  was  valid  and  reasonable.  It  had  not  been  waived  tes- 
tamentarily;  and  if  it  could  be  otherwise  waived,  it  had  not,  in  his  opinion, 
been  so  waived."  Lord  Justice  Turner  said,  that  "  as  to  consent,  he  did  not 
think  that  the  testator  had  given  any  unconditional  consent  which  would  bind 
him."  And  Lord  Justice  Knight  Bruce  further  added,  that  "  he  had  assumed 
for  the  purposes  of  the  argument,  that  the  testator's  consent  to  the  marriage 
had  been  absolute  3  for  in  his  view  the  absoluteness  of  such  consent  was  im- 
material in  such  a  case,  and  under  such  a  testamentary  disposition  as  the  pre- 
sent."    See  also  West  v.  Kerr,  6  Ir.  Jur.  141. 

From  these  authorities  we  may  perhaps  come  to  the  conclusion,  although  it 
is  by  no  means  clear  from  doubt,  that  the  consent  of  the  testator  in  such 
cases,  not  testamentarily  given,  will  not  dispense  with  a  condition  imposed  by 
his  will. 

As  to  whether  conditions  requiring  marriage  with  consent  are  broken  by  a 
first  marriage  without  consent,  so  as  to  disable  a  legatee  from  taking  upon  a 
second  marriage  with  consent.  See  Randal  v.  Payne,  1  Bro.  C.  C.  55;  Page 
V.  Eayward,  2  Salk.  570  ;  Lowe  v.  Manners,  5  B.  &  Aid.  917 ;  StachiwU  v. 
Beaumont,  3  Yes.  89;  Clifford  v.  Beaumont,  4  Buss.  325;  Beaumont  v. 
Square,  17  Q.  B.  905. 

In  a  case  where  an  estate  was  limited  over  in  a  settlement  to  the  plaintiff 
on  the  second  marriage  of  the  defendant,  a  widower,  the  plaintiff  filed  a  bill, 
alleging  that  the  marriage  had  taken  place,  and  seeking  discovery,  a  declara- 
tion of  the  rights  of  the  parties,  and  the  appointment  of  new  trustees.  It  ap- 
peared by  the  evidence  that  no  marriage  had  taken  place,  but  that  the  defend- 
ant was  cohabiting  with  a  woman  whom  he  held  out  to  the  world  to  be  his 
wife.  It  was  held,  however,  by  Sir  W.  Page  "Wood,  V.  C,  that  as  the  plain- 
tiffs failed  in  what  was  really  their  whole  case,  they  ought  to  pay  the  costs  of 
all  parties  up  to  the  hearing,  although  incidental  relief  was  granted  by  the  ap- 
pointment of  new  trustees  :  Preece  v.  Seale,  3  Jur.  N.  S.  711. 

Of  the  laws  as  administered  in  England,  in  contrast  with  those  of  Rome,  in 
regard  to  restraint  upon  marriage,  Mr.  Fonblanque  has  well  observed,  that 
"the  claims  of  parental  *authority,  controlled  as  they  are  by  the  law  r*iQo-i 
of  England,  merit  considerable  respect :  nor  has  the  right  which  indi-  ^ 

viduals  have  of  qualifying  their  bounty,  been  disregarded.  The  only  restric- 
tions which  the  law  of  England  imposes  are  such  as  are  dictated  by  the 
soundest  policy,  and  approved  by  the  purest  morality  :  that  a  parent,  profess- 
ing to  be  affectionate,  shall  not  be  unjust ;  that,  professing  to  assert  his  own 
claim,  he  shall  not  disappoint  or  control  the  claims  of  nature,  nor  obstruct  the 
interests  of  the  community;  that  what  purports  to  be  an  act  of  generosity, 


406  CONDITIONS     IN     RESTRAINT      OF      MARRIAGE. 


shall  not  be  allowed  to  operate  as  a  temptation  to  do  that  which  militates 
against  nature,  morality,  or  sound  policy,  or  to  refrain  from  doing  that  which 
would  serve  and  promote  the  essential  interests  of  society :  are  rules  which 
cannot  reasonably  be  reprobated  as  harsh  infringements  of  private  liberty, 
or  even  reproached  as  unnecessary  restraints  on  its  free  exercise."     1  Fonbl. 

257. 

Contracts  in  restraint  of  marriage,  or  in  fraud  of  the  marriage  contract.'] — 
Upon  the  principle  of  public  policy,  contracts  in  restraint  of  marriage  are  held 
void.  Thus,  in  Baker  v.  White,  2  Vern.  215,  a  widow  gave  a  bond  to  pay  B. 
£100  if  she  married  again,  and  B.  gave  a  bond  to  her,  to  pay  her  executors 
the  like  sum  if  she  should  not  marry  again.  On  the  marriage  of  the  widow, 
a  bill  being  filed  by  her  and  her  husband,  the  Court  ordered  her  bond  to  be 
delivered  up  to  her,  and  also  the  bond  of  B.  to  be  delivered  up  to  him. 

So  a  contract  to  marry  a  particular  person,  when  that  person  is  not  bound 
by  corresponding  obligation,  will  be  cancelled :  "  it  being  contrary  to  the  na- 
ture and  design  of  marriage,  which  ought  to  proceed  from  a  free  choice, 
and  not  from  any  compulsion  :"  Key  v.  Bradshaw,  2  Vern.  102 ;  and  see 
Woodhouse  v.  Shej)l.ey,  2  Atk.  535;  Loxoe  v.  Peers,  4  Burr.  2225;  Cock  v. 
Richards,  10  Ves.  429;  Hartley  v.  Rice,  10  East,  22.  See  Dig.  Lib.  xxxv., 
tit.  1,  1.  62,  63,  64. 

A  contract,  however,  by  which  persons  are  mutually  bound  to  marry  each 
other,  will  be  valid.  See  Cock  v.  Richards,  10  Ves.  438,  439  ;  and  Atkins  v. 
Farr,  1  Atk.  28  ;  S.  C,  2  Eq.  Ca.  Ab.  247.  So,  a  covenant  to  pay  a  woman 
a  sum  of  money  so  long  as  she  continues  sole  and  unmarried,  is  not  illegal : 
Gihson  V.  Dickie,  3  M.  &  S.  463. 

But  although  the  contract  may  be  mutual  and  valid  at  law,  a  court  of  equity 
will  relieve  against  it,  if  it  be  a  fraud  upon  parents,  or  persons  in  loco  parentis, 
from  whom  expectations  are  entertained.  This  was  much  discussed  by  Lord 
Hardwicke,  in  the  important  case  of  Woodhouse  v.  Shepley,  2  Atk.  535,  where 
it  seems  that  the  defendant,  a  tailor  by  trade,  and  entitled  to  a  small  real 
estate  of  about  £14  per  annum,  in  the  year  1730  made  his  addresses  to  the 
r*lQQi  daughter  of  a  *man  who  was  esteemed  in  the  neighborhood  to  be  a 
person  of  substance ;  the  courtship  had  been  carried  on  for  some  time 
before  it  came  to  the  father's  knowledge,  who,  as  soon  as  he  was  acquainted 
with  it,  declared  a  great  dislike  to  the  match,  and  forbid  his  daughter  giv- 
ing the  suitor  any  encouragement;  notwithstanding  which,  the  courtship  was 
carried  on  in  a  clandestine  manner  till  January,  1732,  when  they  gave  each 
other  mutual  bonds  in  a  penalty  of  £600,  to  marry  each  other  thirteen  months 
after  the  decease  of  the  father.  Upon  the  death  of  the  father,  in  1736,  a  bill 
being  filed  by  the  daughter.  Lord  Hardwicke,  upon  the  whole  circumstances 
taken  together,  but  principally  by  the  encouragement  which  a  different  deci- 
sion might  give  to  disobedience,  and  fraud  on  parents,  decreed  the  bond  given 
by  the  daughter  to  be  cancelled.  "  The  points,"  said  his  Lordship,  "  on 
which  I  found  my  judgment,  are  these  :  that  bonds  of  this  sort,  where  parents 
arc  living,  arc  liable  to  great  fraud  and  abuse;  that,  to  decree  in  favor  of  such 


SCOTT     V.     TYLER.  407 


a  bond,  would  be  a  great  encouragement  to  persons  to  lie  upon  the  catch  to 
procure  unequal  marriages  against  the  consent  of  parents ;  and  though  they 
dare  not  solemnize  the  marriage  in  the  lifetime  of  the  parent,  but  only  engage 
the  aifection,  and  draw  the  unfortunate  person  into  a  bond  to  forfeit  their 
whole  fortune,  as  is  the  case  here,  yet  it  is  of  very  dangerous  consequence, 
and  tends  to  bring  great  misfortunes  upon  families. 

''  Another  principal  ground  of  my  opinion  is,  that  this  tends  to  encourage 
disobedience  to  parents,  and  indeed  is  a  fraud  and  imposition  on  the  parent, 
though  there  is  no  actual  fraud  as  between  the  parties.  In  this  case  she  lived 
with  her  father,  and  was  dependent  on  him  for  her  portion,  and  he  considered 
her  as  a  child  to  be  advanced ;  and  though  a  parent  has  no  power  by  law  to 
prevent  the  marriage  of  his  child,  yet  it  is  expected  that  she  should  take  his 
consent  and  approbation  ;  and  by  the  laws  of  some  countries  that  is  made 
necessary.  It  is,  therefore,  a  fraud  on  the  father,  who  thinks  his  child  has 
submitted  to  his  opinion  of  the  match,  and  in  that  opinion  makes  a  provision 
for  her,  to  advance  her  in  marriage,  which,  had  he  known  of  the  bond,  he 
would  not  have  done,  or  might  have  done  in  such  a  manner  as  would  have 
prevented  the  marriage ;  it  is,  therefore,  in  fraud  of  the  father's  right  of  dis- 
posing of  his  fortune  among  his  children,  according  to  their  deserts,  and  may 
be  compared  to  the  cases  of  bonds  given  before  marriage  to  return  a  part  of  the 
portion ;  for  there  is  no  fraud  in  those  cases  between  the  contracting  parties, 
but  on  the  parents  or  friends  of  one  of  them,  who  are  deceived,  by  settling 
lands  equal  to  the  portion  that  appears  to  be  given  ;  and  for  such  reason  such 
*bonds  have  been  set  aside.  Another  ground  of  relief  is  the  penalty ;  r*onm 
for  this  differs  greatly  in  the  reasonableness  of- it  from  executory  pro- 
mises, where  the  jury  can  consider  the  whole  case,  and  whether  the  party  has 
been  unwarily  drawn  into  such  a  contract  or  not,  and  the  change  of  circum- 
stances since  the  execution,  and  give  damages  accordingly;  and  though  it 
has  been  truly  said,  that  a  great  alteration  of  circumstances  or  character 
would  be  a  ground  of  relief  here,  yet  that  cannot  be  offered  at  law  against  the 
penalty,  and  bonds  tend  in  themselves  to  prevent  such  circumstances  from 
being  properly  considered ;  bonds  of  this  sort,  therefore,  deserve  less  favor 
upon  this  account,  though  perhaps  that  alone  would  not  be  sufficient  to  set 
them  aside.  As  to  the  cases  cited,  none  of  them  came  up  to  this :  Key  v. 
Bradshaio,  (2  Vern.  102.)  The  reason  of  that  ease  was  the  inequality  of  cir- 
cumstances, and  the  party  being  a  servant,  and  the  danger  of  admitting  such 
transactions  into  families.  Baker  v.  Wliite,  (2  Yern.  215,)  went  upon  the 
general  restraint  of  marriage." 

In  another  respect,  our  Courts  have  very  properly  not  followed  the  civil 
law,  by  which  proxeneta),  or  matchmakers,  were  allowed  to  stipulate  for  a  re- 
ward not  exceeding  a  certain  amount,  for  promoting  marriages  ;  for  it  has  been 
held  in  equity,  from  a  very  early  period,  that  all  contracts  or  agreements  for 
promoting  marriages  for  reward,  (usually  termed  marriage  brokage  contracts,) 
are  utterly  void,  upon  the  principle,  that  every  contract  relating  to  marriage 
ought  to  be  free  and  open,  whereas  marriage  brokage  contracts  necessarily  tend 


408  COXDTTIOXS     IN     RESTRAINT     OF     MARRIAGE. 


to  a  deceit  on  one  party  to  the  marriage,  or  to  the  parents  or  friends  :  Roberts  v. 
Roberts,  3  P.  Wms.  76;  Chesterfields.  Jansscn,  2  Ves.  150;  ante,  vol.  1, 
p.  428. 

Nor  does  the  Court  interpose  for  the  particular  damage  done  to  the  party 
only,  but  likewise  from  a  public  consideration,  marriage  greatly  concerning 
the  public.     Per  Lord  Talbot,  in  Law  v.  Lair,  Ca.  t.  Talb.  142. 

A  leading  case  upon  this  subject  is  lJ>t//  v.    Thynne,  Show.  P.  C  76. 
There  Thynne,  having  an  intention  to  make  his  addresses  to  Lady  Ogle,  gave 
a  bond  of  £1000   penalty,   to  pay  .£500  ten  days  after  his  marriage  to  one 
Potter,  who  assisted  in  promoting  the  marriage,  which  afterwards  took  effect. 
After  the  death  of  Thynne,  Potter  brought  an  action  upon  the  bond  against 
the  executors,  and  proving  the  marriage,  recovered  a  verdict  for  the  £1000. 
Thereupon  the  executors  tiled  a  bill  in  chancery,  for  relief,  as  the  bond  was 
o-iven  for  an  unlawful  consideration.     Upon  hearing  the  cause  at  the  llolls, 
Sir  John  Trevor,  M.  11.,  decreed  the  bond  to  be  delivered  up,  and  satisfaction 
r*-^nn  ^^  ^^  acknowledged  upon  the  judgment;  this  decree  being  ^reversed 
■-  "         by  Lord  Keeper  Somers,  the  executors  appealed  to  the  House  of  Lords. 
It  was  argued,  on  behalf  of  the  appellants,  that  such  bonds  to  matchmakers 
and  procurers  of  marriage  were  of  dangerous  consequence,   and  tended  to 
betraying,   and  oftentimes  to   the  ruin,   of  persons  of  quality  and  fortune. 
That,  if  the  use  of  such  securities  and  contracts  should  be  allowed  and  coun- 
tenanced, they  might  prove  the  occasion  of  many  unhappy  marriages,  to  the 
prejudice  and  discomfort  of  the  best  of  families.     That  such  bonds  and  secu- 
rities  had  always  been   discountenanced,  and  relief  in   equity  given  against 
them,  even  so  long  since  as  the  Lord  Coventry's  time,  and  long  before,  and 
particularly  in  the  case  of  Arundel  \.  Trevillian,  4  Feb.,  11  Car.  1,  (1  Ch. 
Rep.   ^7  ;)  and  that  marriages   ought  to  be  procured  and   promoted  by  the 
mediation  of  friends  and  relations,  and  not  of  hirelings.     That,  if  such  bonds 
were  not  vacated,  when  questioned  in  a  court  of  equity,  it  would  be  an  evil 
example  to  executors,  trustees,  guardians,  servants,  and  other  people  having 
the  care  of  children;  and  therefore  it  was  prayed  that  the  decree  of  the  Lord 
Keeper  might  be  reversed,  and  it  was  reversed  accordingly :    S.  C,  1  Eq.  Ca. 
Ab.  89,  pi.  3  ;  8  P.  Wms.  76 ;  3  Lev.  414.     The  vice  of  such  a  considera- 
tion is  now,  it  seems,  pleadable  at  law :    Colliiis  v.  Blantern,  2  Wils.  347. 

And  so  far  has  the  principle  been  carried,  that  Lord  Rcdesdalc  declared  a 
bond  void  which  was  given  as  a  remuneration  to  the  obligee  for  having 
assisted  the  obligor  in  effecting  an  elopement  and  marriage  without  the  con- 
sent of  the  wife's  friends,  although  it  was  given  voluntarily  after  marriage,  and 
without  any  previous  agreement  for  the  same.  *'  What,"  said  his  Lordship, 
"is  the  view  which  courts  of  justice  take  of  transactions  of  this  description  ? 
Here  was  a  young  lady  taken  from  her  friends,  carried  off  to  Scotland,  and 
there  married,  and  a  young  man  without  fortune  put  into  a  situation  to  de- 
mand, by  force  of  his  marital  rights,  possession  of  her  property;  and  a  person 
concerned  in  the  transaction,  which  is  inifjuitous  on  the  part  of  the  husband, 
is  to  increase  the  distress  of  the  injured  fan)ily,  by  obtaining  from  the  hus- 


SCOTT     V.     TYLER.  409 


band  a  reward  for  his  assistance  in  it.  Thus  the  wife  is  to  be  injured  even 
beyond  the  injury  which  slie  has  received  by  the  conduct  of  her  husband  ; 
for,  after  marriage,  everything  the  husband  is  bound  to  pay,  is  an  injury  to 
the  wife.  This  is  so  considered  in  various  cases  in  courts  of  justice.  A 
father  prevails  on  his  son,  previous  to  his  marriage,  to  enter  into  a  voluntary 
bond ;  the  son  does  so,  and  the  transaction  is  concealed  from  the  family  of  the 
wife.  The  son  shall  be  relieved,  and  why  ?  Because  the  bond  is  a  fraud 
upon  the  marriage  ^contract.  It  may  have  been  agreed  between  the  r^.^n.,-! 
father  and  the  son,  and  perhaps  the  father,  in  consequence  of  that  ^  ""  ^J 
agreement,  settled  more  than  he  could  afford;  but  if  the  effect  is  to  alter  the 
condition  in  which  the  wife  would  otherwise  be,  such  a  bond  is  not  suffered 
to  have  operation  ;  and  this  not  so  much  for  the  sake  of  the  husband,  as  for  the 
sake  of  the  wife  and  her  family  :  Wniiamson  v.  Gihon,  2  S.  &  L.  357,  362. 
The  fact  of  the  match  being  an  equal  or  proper  one,  as  in  IMl  v.  Potter, 
will  not  render  a  marriage  brokage  contract  valid :  Cole  v.  Gibson,  1  Yes. 
50G;  and  such  contract  being  contrary  to  public  policy,  is  not  capable  of  con- 
firmation :  Cole  V.  Gibson,  1  Ves.  503,  506,  507  ;  Roberts  v.  Roberts,  3  P. 
Wms.  74,  and  Cox's  note  (1)  ;  and  money  paid  pursuant  to  such  contract  may 
be  recovered  back  in  equity  :  Smith  v.  Brunivg,  2  Vern.  392;  Goldsmith  v. 
Bruning,  1  Eq.  Ca.  Ab.  89,  pi.  4. 

Upon  the  same  principle,  every  contract  by  which  a  parent  or  guardian 
obtains  any  security  for  promoting  or  consenting  to  the  marriage  of  his  child 
or  ward,  is  void  :  Kcat  v.  Allen,  2  Vern.  588;  S.  C,  Prec.  Ch.  267.  So,  in 
Duke  of  Hamilton  v.  Lord  Mohun,  2  Vern.  652 ;  Gilb.  Eq.  Rep.  297,  the 
mother,  being  guardian,  on  the  marriage  of  her  daughter  insisted  upon  having 
from  the  intended  husband  a  bond,  in  a  penalty  that  he  would  give  her  a  re- 
lease of  all  accounts  as  guardian,  within  two  years  after  the  marriage.  The 
bond  was  set  aside,  as  the  case  was  in  the  nature  and  reason  of  marriage 
brokage  bonds,  and  that  there  was  no  difference  between  giving  a  bond  for 
procuring  a  marriage,  and  a  bond  to  release  part  of  what  became  due. 

Upon  similar  grounds,  all  contracts  upon  a  treaty  for  a  marriage,  tending  to 
deceive  or  mislead  one  of  the  parties  to  it,  or  their  relatives,  will  be  held  void. 
Thus  a  security  given  by  a  son  without  the  privity  of  his  parents,  who  pro- 
vided for  him  on  his  marriage,  to  return  part  of  the  portion  of  his  wife,  is 
void  :  Turton  v.  Benson,  1  P.  Wms.  496;  and  see  Xemj)  v.  Coleman,  Salk. 
156.  So  where,  upon  a  marriage,  a  settlement  was  agreed  to  be  made  of  cer- 
tain property,  by  relations  on  each  side,  and  after  the  marriage  one  of  the  par- 
ties procured  an  underhand  agreement  from  the  husband,  to  defeat  the  settle- 
ment, it  was  set  aside,  and  the  original  agreement  carried  into  effect :  Peyton  v. 
Bladwell,  1  Vern.  240;  Stribbleliill  y.  Brett,  2  Vern.  445;  S.  C,  Prec.  Ch. 
165. 

So,  where  a  man,  on  the  treaty  for  the  marriage  of  his  sister,  let  her  have 
money  privately,  in  order  that  her  portion  might  appear  as  large  as  was  in- 
sisted on  by  the  intended  husband,  and  she  gave  a  bond  to  her  brother  for  the 
repayment  of  it,  it  was  decreed  to  be  delivered  up  :   Gale  v.  Lindo,  1  Vera. 


410  CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 


[*203] 


*475  ;  and  see  Lamlee  v.  Ilanman,  2  Vern.  499.  So,  where  a  father, 
having,  upon  the  marriage  of  his  son,  made  a  settlement  of  an  annuity 
upon  the  wife,  in  full  for  her  jointure,  and  in  lieu  of  dower,  the  son,  privately, 
without  the  knowledge  of  his  intended  wife  or  her  father,  gave  a  bond  to  in- 
demnify his  father  against  the  annuity  or  rent-charge,  it  was  held  void,  by 
Sir  W.  Grant,  M.  R.,  as  a  fraud  upon  the  faith  of  the  marriage  contract. 
"  In  what,"  said  his  Honor,  ''  does  the  fraud  consist  ?  In  affecting  to  put 
the  party  contracting  for  marriage  in  one  situation  by  the  articles,  and  in 
putting  that  party  in  another,  and  a  worse  situation,  by  a  private  agreement. 
The  parent,  in  this  case,  professes  himself  to  settle  the  jointure.  The  son, 
therefore,  according  to  that,  was  to  have  no  part  of  the  burden  thrown  upon 
his  property;  but,  by  the  private  agreement,  the  burthen  is  thrown  altogether 
back  upon  the  son.  It  is  of  no  consequence  that  the  lady  is  equally,  or  more, 
secure ;  for  the  contract  proceeds  upon  this,  that  he  has  found  the  means  of 
providing  for  her  without  resorting  to  his  own  fortune.  Whereas,  the  effect 
of  the  private  agreement  is  to  throw  the  burthen  entirely  upon  his  fortune ; 
by  which  he  is  to  that  extent  prevented  from  providing  for  his  family,  as  he 
otherwise  might.  This  is  just  as  much  a  fraud  upon  the  marriage  contract, 
as  if,  receiving  a  fortune,  he  returns  part  of  it.  His  capacity  of  providing  for 
his  family  is  equally  diminished  in  both  cases  :"  Palmer  y.  JVearc,  11  Yes.  1G5. 
Relief  will  be  granted  in  such  transactions,  although  the  party  to  the  mar- 
riage seeking  it  be  particeps  criminis;  thus  in  Redman  v.  Redman,  1  Vern. 
343,  upon  a  treaty  of  marriage  between  A.  and  the  daughter  of  B.,  B.  would 
not  consent  to  the  marriage,  because  A.  owed  £200  to  C.  A.'s  brother  there- 
upon gave  his  bond  to  secure  the  debt,  and  A.'s  bond  was  cancelled:  A.,  how- 
ever, without  the  knowledge  of  B.,  but  with  the  privity  of  his  daughter,  gave 
a  counter-bond  to  his  brother.  Upon  A.'s  death,  it  was  held,  that  the  wife, 
though  a  party  to  the  fraud,  might  set  aside  the  bond  ;  and  the  Lord  Chan- 
cellor said,  that  if  A.  had  been  alive,  and  a  party,  he  might  also  have  been 
relieved.  The  principle  upon  which  this  class  of  cases  proceeds  was  much 
discussed  in  the  leading  case  of  Neville  v.  Wilkinson,  1  Bro.  C.  C.  543.  There 
Mr.  Neville,  being  about  to  marry,  inquiry  was  made  by  the  lady's  father  to 
what  extent  he  was  indebted.  Wilkinson,  who  was  applied  to,  at  the  desire 
of  Neville,  concealed  a  demand  which  he  had  against  him;  after  the  marriage 
he  attempted  to  recover  it,  and  a  bill  was  filed  by  Mr.  Neville  to  restrain  him. 
Lord  Thurlow  held,  that  Wilkinson,  having  made  a  misrepresentation,  a  court 
of  equity  must  hold  him  to  it;  observing,  *that  the  principle  on  which 
L  "  ^  such  cases  had  been  decided  was,  "  that  faith  in  such  contracts  was  so 
essential  to  the  happiness  both  of  the  parents  and  children,  that  whoever  treats 
fraudulently  on  such  an  occasion,  shall  not  only  not  gain,  but  even  lose  by  it." 
And  see  Scott  v.  Scott,  1  Cos,  3G6;  Shirley  v.  Ferrers,  cited  11  Ves.  53G; 
The  Vauxhall  Bridije  Companij  v.  The  Earl  of  Spencer,  Jac.  67. 

But  equity  will  not  interfere  if  another  equally  innocent  person  would  thereby 
be  injured.  Thus,  in  Roberts  v.  Roberts,  3  V.  Wms.  G5,  A.  treated  for  the 
marriage  of  his  son,  and  in  the  settlement  on  the  son  there  was  a  power  re- 


SCOTT     V.     TYLER.  411 


served  to  the  father  to  jointure  any  ■wife  whom  he  should  marry  in  £200  per 
annum,  he  paying,  or  securing  the  payment,  of  £1000  to  the  son.  The  father, 
treating  about  marrying  a  second  wife,  the  son,  pursuant  to  an  agreement  with 
the  second  wife's  relations,  released  the  £1000,  but  at  or  soon  after  the  mar- 
riage, took  a  new  bond  from  his  father,  without  the  privity  of  the  second  wife 
or  her  relations.  Upon  a  bill  being  filed  by  the  father.  Sir  Joseph  Jekyll,  M. 
E,.,  refused  to  set  aside  the  bond  given  to  the  son,  observing,  that,  whatever 
arguments  could  be  made  use  of  iri  favor  of  the  father's  second  wife  or  of  the 
father,  to  prove  that  he  ought  to  be  discharged  of  the  bond  for  payment  of  the 
£1000,  the  very  same  arguments  might  be  urged  on  behalf  of  the  son  and  his 
wife,  to  prove  that  it  ought  to  be  paid.  Thus,  supposing  it  to  be  a  hardship 
upori  the  father's  second  wife  that  her  husband  should  be  forced  to  pay  this 
£1000,  in  breach  of  the  public  and  open  agreement  made  by  the  son,  was  it 
not  equally  a  hardship  upon  the  son's  wife,  and  as  much  a  violation  of  the  open 
and  fair  agreement  made  on  her  marriage,  that  the  £1000  should  not  be  paid 
upon  the  father's  making  a  second  jointure,  the  consequence  of  which  would 
be,  that,  as  the  agreement  on  the  son's  marriage  was  first,  it  ought  to  have  the 
preference?     Qui  prior  est  in  tempore,  potior  est  in  jure. 

As  to  settlements  or  contracts  by  a  woman  about  to  be  married,  in  fraud  of 
marital  rights,  see  Countess  of  Strathmore  v.  Bowes,  ante,  vol.  1,  p.  325,  and 
note. 

As  to  Conditions  annexed  to  Gifts,  for  the  "purpose  of  effecting  the  separation 
of  Husband  andWife. — Upon  principles  of  public  policy  it  has  been  held,  that 
where  bequests  are  made  to  married  women  upon  condition  of  their  living 
separate  from  their  husbands,  the  condition  is  void,  being  considered  p?'o  non 
scripto,  and  the  bequest  will  be  good.  Thus,  in  the  old  case  of  Tennant  v. 
Brail,  Toth.  141,  where  a  man  bequeathed  a  sum  of  money  to  his  daughter 
"  if  she  will  be  divorced  from  her  husband,"  it  was  held  *that  the  gift  r*9r)K-| 
was  good,  though  the  condition  was  void.  So  in  the  case  of  Brotcn 
v.  Peek,  1  Eden's  Rep.  140,  where  a  testator  directed  "  that  if  his  niece  lived 
with  her  husband,  his  executors  should  pay  her  £2  per  month,  and  no  more; 
bnt  if  she  lived  from  liiin,  and  ivith  her  mother,  then  they  should  allow  her 
£5  per  month."  It  was  held  by  Lord  Keeper  Henley,  that  the  niece  was 
entitled  to  the  monthly  payment  of  £5  ;  and  his  Lordship  thought  "  that  the 
condition  annexed,  being  impossible  at  the  time  of  imposing  it,  and  contra 
bonos  mores,  the  legacy  was  simple  and  pure." 

The  same  principle  was  acted  upon  in  the  recent  case  of  Wren  v.  Bradley/, 
2  De  G.  &  Sm.  49  :  there  a  testator  bequeathed  an  annuity  to  his  daughter,  a 
married  woman,  "  in  case  she  should  be  living  apart  from  her  husband,  and 
should  continue  so  to  do"  during  the  life  of  his  widow,  with  a  direction,  that 
if  at  any  time  the  annuitant  should  cohabit  with  her  husband,  the  annuity 
should  cease.  By  the  same  will  he  bequeathed  a  share  in  the  residue,  ujjon 
trust  to  pay  the  income  to  the  same  daughter  during  such  time  as  she  should 
continue  to  live  apart  from  her  said  husband;  but  should  she  at  any  time  co- 
habit with  him,  the  testator  directed  that  during  such  time  the  income  should 


412 


CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 


be  paid  between  other  legatees.  The  will  also  contained  a  trust  for  children 
of  the  daughter  by  any  other  husband.  At  the  date  of  the  will  the  daughter 
and  her  husband  were  living  apart ;  but  before  and  at  the  date  of  the  testator's 
death  they  were  reconciled  and  living  together,  and  so  continued  to  live.  It 
was  held  by  Sir  J.  L.  Knight  Bruce,  V.  C,  that  the  daughter  was  entitled  to 
the  bequests.  "  It  is  impossible,"  said  his  Honor,  "  to  read  the  will  without 
perceiving  that  the  testator's  wish  and  object  were  to  obstruct  a  reconciliation, 
and  prevent  the  wife  from  living  with  her 'husband ;  and  that,  by  that  wish, 
by  that  object,  its  provisions  to  her  were  influenced  and  directed.  The  weight 
of  authority,  and  the  principles  of  the  civil  law,  as  far  as  I  consider  them 
applicable,  seem  to  me  to  render  a  decision  in  this  case  in  the  daughter's  favor 
consistent  at  once  with  technical  equity  and  moral  justice." 

As  to  separations  eflFected  between  husband  and  wife  by  their  mutual  con- 
sent, see  the  note  to  Stapilton  v.  Stajiilton,  post. 


It  is  well  settled,  that  a  devise  of 
real  or  personal  estate  to  a  widow  <7ii- 
ranfe  viduitate,  is  strictly  limited  by 
the  terms  of  the  gift,  and  will  expire 
immediately  upon  the  termination  of 
her  widowhood,  by  a  subsequent  mar- 
riage; Vance  v.  CampheU's  Ilcirs,  1 
Dana,  229 ;  Pringle  v.  Dunldctj,  14 
Smedes  &  Marshall,  16;  Hughes  v. 
Boij(l,2.  Sneed,  512;  and  hence,  when 
a  wife  is  appointed  guardian  during 
widowhood,  her  powers  will  cease  im- 
mediately upon  re-marriage,  although 
no  one  may  have  been  named  by  the 
testator  to  fill  the  place  thus  left  vacant; 
Holmes  v.  Field,  12  Illinois,  424. 
On  the  other  hand,  a  condition  subse- 
quent in  restraint  of  marriage,  attach- 
ed to  a  bequest  of  personalty,  will  be 
held  merely  in  terrorem,  and  without 
effect,  unless  coupled  with  a  specific 
limitation  over  in  case  of  a  breach  of 
the  condition  ;  3I'Ilvaine  v,  Gethen, 
3  Wharton,  575.  This  decision  was 
followed  in  ILxrpcs  v.  Dundas,  10 
I'arr,  75,  where  the  bequest  of  an  an- 
nuity to  the  widow  of  a  deceased  son, 


"during  the  term  of  her  natural  life, 
if  she  so  long  remain  a  widow  and 
unmarried,"  was  held  to  be  on  condi- 
tion, and  not  a  conditional  limitation, 
and  as  such,  not  to  be  divested  by  the 
marriage  of  the  widow,  after  the 
death  of  the  testator.  And  it  was 
held,  in  both  cases,  that  a  general  re- 
siduary bequest,  will  not  convert  a 
specific  or  pecuniary  bequest  ofi  con- 
dition, into  a  conditional  limitation, 
and  that  to  produce  this  result,  the 
bequest  must  be  given  over  specifi- 
cally on  the  breach  of  the  condition. 
A  similar  view  was  taken  in  Muddox 
v.  3Iaddox,  11  Grattan,  804;  and  a 
bequest  to  a  niece,  during  her  single 
life,  and  forever,  if  her  conduct  should 
be  orderly,  and  she  remained  a  mem- 
ber of  the  society  of  Friends,  held 
to  confer  an  absolute  interest :  the  con- 
dition being  said  to  impose  an  unrea- 
sonable restraint  on  the  freedom  of 
marriage,  by  confining  the  choice  of 
the  legatee  to  the  members  of  a  par- 
ticular persuasion  ;  and  the  absence  of 
a  specific  bcfiuest  over,  showing  that 


SCOTT     V.     TYLER. 


413 


it  was  merely  in  terror  em,  and  not 
intended  as  a  limitation. 

The  same  principle  had  been  ap- 
plied at  a  much  earlier  period  by  the 
Supreme  Court  of  Massachusetts,  in 
Parson  v.  Winshio,  6  Mass.  IGD,  to  a 
state  of  facts  which  seems  hardly 
to  have  admitted  of  its  application. 
The  testator  there  bequeathed  thirty 
thousand  dollars  to  trustees,  *'  for  the 
sole  use  of  his  wife,  during  her  widow- 
hood and  life,"  and  then  after  giving 
directions  for  the  investment  of  the 
legacy,  and  the  payment  of  the  in- 
terest to  the  wife,  went  on  to  pro- 
vide, that  the  trust  thus  created 
should  "  cease  with  the  widowhood  of 
his  wife,  and  expire  at  her  death,  and 
that  the  money  bequeathed  to  her  use, 
in  whatever  form  it  might  then  be, 
should  go  to  his  son."  Notwithstand- 
ing the  words  of  the  gift  itself,  which 
were  clearly  those  of  limitation,  and 
the  gift  over  to  the  son,  upon  the  ces- 
sation of  the  wife's  interest,  the  whole 
was  construed  as  a  bequest  upon  con- 
dition subsequent,  without  limitation 
over,  and  held  not  to  be  defeated  by 
the  marriage  of  the  widow.  This  de- 
cision was,  however,  delivered  by  one 
only  of  the  three  judges,  who  com- 
posed the  court,  the  chief  justice  not 
sitting  in  the  cause,  and  Sewell,  J., 
dissenting. 

In  these  cases,  the  question  turned, 
not  on  the  validity  of  the  restraint  im- 
posed, but  on  the  failure  of  the  testa- 
tor to  adopt  proper  means  to  enforce 
it,  by  giving  the  legacy  to  other  per- 
sons in  the  event  of  a  breach  of  con- 
dition on  the  part  of  the  legatee.  But 
is  was  not  disputed,  and  would  seem 
well  settled,  that  a  condition  operat- 
ing to  restrain  the  marriage  of  a 
widow  is  legal,  and  will  be  effectual 


when  put  in  the  form  of  a  limitation 
or  of  a  gift  over,  upon  a  breach  of  the 
condition ;  Hawkins  v.  Ske(jgs,  10 
Humphreys,  31;  Collier  v.  Slaugh- 
ter, 20  Alabama,  263.  In  Bennett 
V.  Robinson,  10  Watts,  348,  a  devise 
of  the  profits  of  land  to  a  wife,  so  long 
as  she  remained  a  widow,  was  treated 
as  a  valid  limitation,  under  which  she 
took  an  estate  in  the  land  during 
widowhood,  determinable  by  marriage. 
And  the  validity  of  a  restraint  on  the 
marriage  of  a  widow,  was  again  held 
in  the  subsequent  cases  of  The  Com- 
momcealth  v.  Stauffer,  10  Barr,  350; 
and  3L  Cullough's  Appeal,  2  Jones, 
197;  where  it  was  also  decided,  that 
such  a  restraint  was  equally  effectual  in 
the  case  of  realty,  whether  put  in  the 
form  of  a  conditional  limitation,  or  of 
a  condition  subsequent.  The  differ- 
ence in  this  respect  between  real  and 
personal  estate,  being,  that  the  heir  is 
entitled  to  enforce  a  breach  of  condi- 
tion in  the  case  of  realty,  but  not  of 
personalty. 

The  language  of  the  court,  in  The 
Commomvealth  v.  Stauffer,  went  be- 
yond the  point  actually  before  them, 
and  inclined  strongly  to  the  idea,  that 
conditions  in  restraint  of  marriage  ge- 
nerally, are  not  void  under  the  doc- 
trines of  the  common  law,  or  even  of 
equity,  although  invalid  when  at- 
tached to  legacies  of  personalty, 
which  are  governed  by  the  rules  of 
the  ecclesiastical  and  civil  law.  And 
it  was  remarked  with  great  force  in 
support  of  this  opinion,  that  if  a  re- 
straint on  marriage  were  essentially 
contrary  to  the  spirit  of  English  or 
American  jurisprudence,  it  must  be 
equally  invalid,  where  put  in  the 
form  of  a  condition  in  avoidance  of 
a  vested  bequest,  or  of  a  limitation 


414 


COXDITIOXS     IN     RESTRAINT     OF     MARRIAGE. 


enduring  only  so  long  as  the  legatee 
should  remain  unmarried.  For,  in 
either  case,  the  eiFect  is  the  same,  and 
the  legatee  is  compelled  to  choose  be- 
tween remaining  unmarried  and  for- 
feiting the  legacy.  Nearly  the  same 
ground  was  taken  by  the  Supreme 
Court  of  Connecticut  in  Phillips  v. 
Medhurij,  7  Conn.  568,  where  they 
not  only  decided,  that  a  condition 
avoiding  a  devise  of  land  to  a  widow 
in  the  event  of  re-marriage,  was  valid, 
and  entitled  the  heir  to  an  entry  upon 
breach,  but  intimated  an  opinion  that 
the  restraint  would  have  been  equally 
good,  if  imposed  upon  a  person  who 
had  never  been  married.  "  It  is  in- 
sisted by  the  counsel  for  the  defend- 
ant," said  the  court,  "  that  limitations 
of  this  kind,  when  introduced  into  a 
will,  are  merely  in  terrorem,  and  shall 
not  work  a  forfeiture  of  the  estate  de- 
vised. They  are  also  compared  to 
bonds  given  not  to  marry,  which  are 
always  void  on  the  ground  of  public 
policy.  A  bond  not  to  marry,  or  not 
to  marry  any  one  except  the  obligee, 
is  doubtless  void.  Marriage  should 
be  free;  should  proceed  from  choice, 
not  from  compulsion.  This  is  a  salu- 
tary rule  of  the  common  law;  Lou-e 
V.  Peers,  4  Burr.  2225.  Hence,  also, 
all  marriage  brokage  contracts  are 
discountenanced.  But  declaring  re- 
straints upon  marriages  in  wills  void, 
as  made  in  terrorem,  is  another  and 
different  doctrine.  It  is  not  a  doc- 
trine of  the  common  law,  but  intro- 
duced into  the  court  of  chancery  in 
England  from  the  canon  law.  As 
that  court  is  considered  as  possessing 
the  power  over  legacies,  it  has  adopted 
the  rule  of  the  canon  law  to  a  certain 
extent.  It  has  declared,  for  example, 
in  many  cases  where  the  devisor  has 


imposed  an  unreasonable  restraint  upon 
a  young  male  or  female,  and  annexed 
it  to  a  devise,  that  it  should  be  deemed 
in  terrorem  ;  and,  therefore,  that  the 
devise  should,  notwithstanding,  take 
effect.  But  in  all  these  cases,  it  is 
admitted,  that  this  power  is  not  given 
by  the  common  law;  nor  is  it  ever 
exercised  in  relation  to  real  estate, 
but  only  as  to  personal  estate,  which 
is  in  the  case  of  legacies,  subject  to 
the  control  of  a  court  of  chancery. 
Nor  is  it  applied  to  a  widow.  It 
would  seem  very  reasonable  that  a 
man  leaving  a  widow  with  seven  chil- 
dren, as  is  the  present  case,  should  bo 
permitted  to  encourage  her,  by  a  suit- 
able provision  in  his  will,  to  remain 
single,  and  not  subject  his  own  off- 
spring to  the  probable  evils  of  a  step- 
father to  waste  her  substance,  and 
thereby  render  her  less  able  to  support 
and  educate  them.  Indeed,  it  entire- 
ly accords  with  reason  as  it  appears  to 
me,  that  she  should  have  an  option  to 
take  such  provision,  and  remain  un- 
married, or  refuse  it,  and  be  thrown 
upon  the  general  provision  of  the  law, 
— her  dower.  Nor  have  I  been  able 
to  find  any  case,  or  any  dictum  of  any 
judge  or  chancellor,  in  opposition  to 
these  principles.  In  Amos  v.  Horner, 
1  Eq.  Ca.  Abr.  112,  and  in  Scott  v. 
Tyler,  2  Bro.  Chan.  Kep.  487,  488, 
they  are  expressly  recognized.  In 
the  latter  case  Lord  Thurlow,  after  a 
very  elaborate  discussion,  by  very  able 
counsel,  in  which  all  the  cases  are 
examined,  declares  the  result  to  be, 
that  'a  condition  that  a  widow  shall 
not  marry,  is  not  unlawful.  An  an- 
nuity during  widowhood, — a  condition 
to  marry  or  not  to  marry  Titius,  is 
good.' 

Notwithstanding  the  weight  due  to 


SCOTT     V.     TYLER. 


415 


this  opinion,  and  to  that  delivered  in 
The  Commonwealth  v.  Stavffcr,  they 
must  be  limited  as  authorities  to  the 
points    actually    decided,    that  a   re- 
straint   upon    the    re-marriage    of    a 
widow  is  valid,  and  that  every  valid 
condition  attached  to  an  estate  in  land, 
gives  the  heir  a  right  of  entry.     As 
to  every  thing  else,  they  rank  as  mere 
dicta,  and  cannot  outweigh  the  express 
decisions  against  the  validity  of  con- 
ditions in    general  restraint  of  mar- 
riage.    It  may  be  true,  as  was  said  in 
The  Commonwealth  v.  Stanffer,  that 
the  opinion  of  those  who  are  best  in- 
formed on  such  subjects,  no  longer 
regards  the  increase  of  population  as 
necessarily  advantageous  to  the  com- 
munity.    But  it  is  equally  true  that 
one  of  the  objects  for  which  the  law 
gives  the  power  to  dispose  of  property 
after  death,   is  the  welfare  of  those 
who  are  the  objects  of  the  testator's 
bounty,  and   that   it  should    not   be 
made  the  means  of  suifering,  or  even 
of  inconvenience.     A  prohibition  to 
marry,  enforced  by  a  forfeiture  of  pro- 
perty, in  case  of   disobedience,  may 
cause  unhappiness,  by  putting  interest 
in  conflict  with  inclination,  or  it  may 
induce  an  attempt  to  reconcile  both 
at  the  expense  of  society  and  morality. 
It  ought  not,  therefore,  to  be  permit- 
ted, except  in  so  far  as   it  tends  to 
prevent  some  injury,  or  answer  some 
good  and  intelligible    purpose.     The 
possession  and  enjoyment  of  property 
cannot   be    clogged   with   useless   or 
vexatious   restrictions,  even    by  con- 
tract,  and  much  less    to  gratify  the 
caprice  of  the  testator.     In  NewJdrh 
V.  Neirklrh,  2  Caines,  345,  a  condi- 
tion that  the  devisee  should  inhabit 
the  village,  in  which  the  land  devised 
was  situated,  was  held  to  be  void,  not 


merely  as  being  repugnant  to  the 
estate  devised,  but  as  being  arbitrary 
and  absurd.  And  it  is  not  easy  to 
see  why  a  restraint  on  the  marriage 
of  a  devisee,  should  meet  with  more 
favor  than  on  the  place  of  his  domicil. 
Indeed,  the  opinion  delivered  in  New- 
Jcirk  v.  NewJcirk,  was  in  some  degree, 
based  upon  what  was  treated  as  the 
acknowledged  invalidity  of  a  general 
restraint  upon  marriage. 

The  weight  of  authority,  accordingly 
is,  that  a  condition  in  general  restraint 
of  marriage,  or  which  attempts  to 
fetter  it  by  unreasonable  restrictions, 
is  inoperative  and  void;  Waters  v. 
Tazewell,  9  Maryland,  291 ;  Madclox 
V.  Madclox,  11  Grattan,  804,  and  in 
Waters  v.  Tazewell,  a  provision  in  a 
marriage  settlement,  that  the  interest 
of  the  husband  should  be  forfeited  in 
the  event  of  his  re-marriage,  was  held 
to  fall  within  this  principle. 

These  objections  apply  with  much 
less  force  to  prohibitions  of  mar- 
riage during  widowhood  or  minority, 
whether  absolute  or  requiring  the  pre- 
vious consent  of  third  persons,  and 
are  met  by  other  and  countervailing 
considerations.  It  may  be  highly  ex- 
pedient, to  protect  a  minor  against 
unsuitable  and  disadvantageous  pro- 
posals of  marriage,  by  providing  that 
the  marriage  shall  not  take  place  in 
opposition  to  the  opinion  of  trustees 
or  guardians,  until  full  age,  and  to 
enforce  this  restraint,  by  withholding 
the  fortune,  which  may  be  the  chief 
motive  with  one  of  the  parties  for  at- 
tempting to  violate  it.  And  a  hus- 
band and  father  in  providing  for  death, 
may  desire  to  leave  the  control  of  the 
whole,  or  the  greater  part  of  his  pro- 
perty to  his  widow,  as  the  best  means 
of  keeping  his  children  together,  and 


41G 


CONDITIONS     IN     RESTRAINT     OF     MARRIAGE. 


educating  them,  and  yet  be  unwilling 
to  entrust  her  with  the  same  power 
after  a  second  marriage.  In  these 
cases  therefore,  and  some  others,  the 
wisdom  of  the  law  has  made  an  excep- 
tion, which  should  be  recognized  as 
such,  and  not  allowed  to  impair  the 
weight  and  authority  of  the  general 
rule.  Thus,  in  Collier  v.  Slaughter, 
20  Alabama,  263,  a  restraint  on  the 
marriage  of  an  infant,  without  the 
consent  of  her  guardian,  in  the  form 
of  a  conditional  limitation,  was  held 
valid,  and  sustained  against  the  legatee 
who  had  violated  the  condition. 

"When  land  is  given  upon  a  condi- 
tion precedent,  which  is  broken  or  not 
performed,  the  gift  will  fail  of  effect, 
even  when  the  condition  is  contrary 
to  law;  Taylor  v.  Mason,  9  Wheaton, 
350 ;  but  a  different  and  more  reason- 
able rule  prevails,  when  personalty  is 
in  question,  under  which  invalid  con- 
ditions are  struck  out  of  the  instru- 
ment, and  the  estate  held  to  vest  in- 
dependently of  the  condition ;  Maddox 
V.  Maddox,  11  Grattan,  804,  80G; 
Story's  Equity,  sect.  2H9 ;  and  in 
Maddox  v.  Maddox,  a  legatee  was 
held  entitled  to  a  bequest,  which  had 
been  made  to  her  by  the  testator, 
notwithstanding  the  breach  of  an  un- 
reasonable restriction  on  her  marriage 
by  a  condition  precedent  in  the  will. 

Marriage  is  less  a  matter  of  bar- 


gain and  sale  in  this  country  than 
in  most  others,  and  the  question 
whether  it  can  be  a  valid  considera- 
tion for  a  pecuniary  contract,  not  in 
the  nature  of  a  settlement,  has  been 
but  little  considered.  Perhaps,  from 
this  cause  it  was  held  in  Donallen  v. 
Lennox,  6  Dana,  80,  that  an  agree- 
ment by  an  executrix  to  compromise 
a  suit,  which  she  had  brought  in  equi- 
ty in  her  representative  capacity,  was 
not  invalid,  although  made  in  consi- 
deration of  a  promise  of  marriage  by 
the  defendant.  In  this  case,  how- 
ever, the  contract  was  between  the 
parties  to  the  marriage,  without  the  in- 
tervention of  third  persons,  which,  as 
it  seems,  the  policy  of  the  law  will  not 
tolerate.  ''  Marriage  brokage  bonds," 
said  Parsons,  C.  J.,  in  Boijnton  v. 
Iluhhard,  7  3Iass.  168,  '^  which  are 
not  fraudulent  on  either  party,  are  yet 
void,  because  they  are  a  fraud  on  third 
persons,  and  a  public  mischief,  as  they 
have  a  tendency  to  cause  matrimony 
to  be  contracted  on  mistaken  princi- 
ples, and  without  the  advice  of  friends, 
and  they  are  relieved  against  as  a  ge- 
neral mischief,  for  the  sake  of  the  pub- 
lic." And  it  is  thoroughly  well  settled, 
that  contracts  inter  vivos,  in  restraint 
of  marriage,  are  equally  void,  with 
restrictions  imposed  by  a  testator  at 
his  death ;  Lowe  v.  Peers,  4  Burrow, 
2225. 


ROBINSON     V.      PETT.  417 

COMMISSIONS   OF   TRUSTEES   AND    EXECUTORS. 

♦ROBINSON  V.  PETT.  [*206] 

DE  TERM  PASCH.E,  1734. 

REPORTED    3    P.    WMS.    132.^ 

No  ALLOWANCE  TO  AN  EXECUTOR  OR  TRUSTEE  FOR  HIS  CARE  AND  TROU- 
BLE.]—  The  Court  never  allows  an  executor  or  trustee  for  his  time  and 
trouble,  esjjeciallr/ roller e  there  is  an  express  legacy  for  his  pains ;  neither 
will  it  alter  the  case,  that  the  executor  renounces,  and  yet  is  assisting  to 
the  executorship  ;  nor  even,  though  it  apjjears  that  the  executor  has  de- 
served more,  and  Lenefited  the  trust,  to  the  prejudice  of  his  own  affairs. 

The  question  was,  whether  an  executor  who  had  renounced,  but  had  yet 
been  assisting  in  the  trust,  according  to  the  request  of  the  testator,  should 
have  any  additional  consideration,  when  he  had  an  express  legacy  for  such  his 
assistance. 

Robert  Pett,  a  considerable  draper  and  mercer  at  Aspallstoneharu,  in  Suifolk, 
made  his  will  in  October,  1710,  whereby  he  devised  the  surplus  of  his  real  and 
personal  estate  to  his  grandchildren,  and  appointed  the  defendant  Pett,  who 
had  been  first  his  servant,  and  afterwards  his  journeyman,  together  with  one 
Larkin,  executors,  giving  to  each  of  his  executors  £100  for  their  trouble  about 
the  execution  of  their  trust,  and  directing,  that  if  the  defendant  Larkin  should 
refuse  the  executorship,  he  should  lose  his  legacy;  but  if  the  defendant  Pett 
should  refuse  to  take  on  him  the  executorship,  yet  that  he  should  have  his 
£100  paid  him,  povided  he  would  be  aiding  and  assisting  in  the  management 
and  execution  of  the  trust. 

Larkin  only  proved  the  will,  and  the  defendant  Pett  renounced  the  execu- 
torship. 

On  a  bill  brought  by  the  plaintiffs,  the  grandchildren,  against  the  executors, 
for  an  account  of  the  personal  estate,  *the  defendant  Pett  was  allowed  i-^.^a--! 
his  £100  legacy ;  but  he  likewise  insisted  to  have  £400  more  for  his 
extraordinary  pains,  trouble,  and  expense  of  time  in  and  about  the  affairs  of 
the  testator,  particularly  for  having  made  up  some  very  intricate  accounts,  and 
got  in  some  desperate  debts ;  and  there  was  some  proof  that  the  defendant 
Pett  had  greatly  benefited  the  testator's  estate,  and  prejudiced  his  own,  (he 
himself  being  a  mercer,)  and  that  he  had  neglected  his  own  trade,  and  lost 
some  customers  while  he  was  looking  after  the  concerns  of  his  testator. 

This  cause  was  first  heard  before  the  Master  of  the  Kolls,  Sir  Joseph  Jekyll, 
who  declared  it  to  be  a  rule  so  settled,  that  a  trustee  or  executor  in  trust  should 
not  have  any  allowance  for  his  care  and  trouble,  unless  there  xcere  some  par- 

1  S.  C,  2  Eq.  Ca.  Ab.  454,  pi.  10. 

VOL.  II. — 27 


418         COMMISSIONS     OF     TRUSTEES     AND     EXECUTORS. 

ticular  toords  in  the  will  for  that  j^urpose,^  that  he  could  not  break  into  it ; 
and  that  there  was  the  less  occasion  to  do  so  in  the  present  case,  as  the  testa- 
tor had  here  given  the  defendant  an  express  legacy  of  100?.  for  his  care  and 
trouble ;  so  that  the  testator  himself  had  set  an  estimate  and  value  upon  it  of 
£100,  which  since  the  defendant  had  accepted,  the  Court  could  not  increase. 

From  this  decree  there  was  an  appeal  to  the  Lord  Chancellor,  before  whom 
it  was  insisted  by  the  Attorney  and  Solicitor-General,  (who  had  both  signed 
the  petition  of  appeal,)  that  the  defendant  Pctt  having  renounced  the  execu- 
torship, and  the  other  executor  only  having  proved  the  will,  the  defendant, 
Pett,  was  as  a  stranger;  and  in  regard  that  he  appeared  to  have  done  these 
eminent  services  to  the  estate  so  much  to  his  own  prejudice,  he  was  entitled 
to  a  quantum  meruit  in  the  same  manner  as  if  he  had  not  been  an  executor ; 
so  that  this  was  out  of  the  common  case,  and  to  be  considered  as  if  the  defen- 
dant had  been  employed  in  the  nature  of  a  bailiff,  &c. ;  for  which  reason  it 
was  prayed,  that  the  Master  might  be  directed  to  have  regard  to,  and  make 
some  allowance  for,  the  great  trouble  and  successful  pains  taken  by  the  defen- 
dant, in  relation  to  the  affairs  of  the  testator. 

Lord  Chancellor  Talbot. — It  is  an  established  rule,  *that  a 
L  -  J  trustee,  executor,  or  administrator,  shall  have  no  alloicance  for  his 
care  and  trouble  ;  the  reason  of  which  seems  to  he,  for  that,  on  these  jJ^etenccs, 
if  alloioed,  the  truest  estate  might  he  loaded,  and,  rendered  of  little  value  ^"^  be- 
sides the  great  difficulty  there  might  be  in  settling  and  adjusting  the  quantum 
of  such  allowance,  especially  as  one  man's  time  may  be  more  valuable  than 
that  of  another;  and  there  can  be  no  hardship  in  this  respect  upon  any  trustee, 
who  may  choose  whether  he  will  accept  the  trust  or  not. 

The  defendant's  renouncing  the  executorship  is  not  material,  because  he  is 
still  at  liberty,  whenever  he  pleases,  to  accept  the  executorship;  otherwise,  if 
both  the  executors  had  renounced,  and  the  ordinary  had  thereupon  granted 
administration.  And  if  this  were  to  make  any  difference,  it  would  be  an  art 
practised  by  executors  to  get  themselves  out  of  this  rule,  which  I  take  to  be 
a  reasonable  one,  and  to  have  long  prevailed.  But  furthei-,  in  the  present 
case,  the  testator  has  by  his  will  expressly  directed  what  should  be  the  defen- 
dant's recompense  for  his  trouble,  in  case  of  his  refusing  the  executorship  :  viz. 
that  he  still  should  have  the  £100  legacy,  to  which  I  can  make  no  addition. 
However,  it  being  a  hard  case,  let  the  defendant  take  back  the  deposit.' 


There  is  no  rule  better  established  than  that  stated  by  Lord  Talbot  in  the 
principal  case,  viz.,  that  a  trustee,  executor,  or  administrator  shall  have  no 

1  See  Ellisoa  v.  Airey,  1  Ves,  115;  Willis  v.  Kibble,  1  Beav.  5G0. 

2  See  Moore  v.  Frowde,  3  My.  &  Cr.  50,  where  Lord  Cottenham  approves  of  this  reason. 
»  Reg.  Lib.  R  1732,  fol.  322,  1733,  fol.333,by  which  it  appears  the  master  of  the  Rolls 

directed  generally,  that  all  parties  should  have  just  allowances,  and  on  appeal  by  the 
defendant  Pett,  this  decree  was  affirmed,  but  the  particular  gravamen  is  not  stated. 
See  Howes  and  Downes  v.  Lord  Pctrc,  Salk.  321  ;  The  King  v.  Simpson,  3  Burr,  14G3. 


ROBINSON     V.      PETT.  419 

allowance  for  his  care  and  trouble.  It  proceeds  upon  the  well-known  principle, 
almost  invariably  acted  upon  by  courts  of  equity,  that  a  triistee  shall  not  projit 
hy  his  trust.  '*  The  reason  of  the  rule,"  observes  Lord  Cottenham,  '<  is  well 
stated  in  Robinson  v.  Pett :  '  The  reason  seems  to  be,  for  that,  on  these  pre- 
tences, if  allowed,  the  trust  estate  might  be  loaded,  and  rendered  of  little 
value.'  It  is  not  because  the  trust  estate  is  in  any  particular  case  charged 
with  more  than  it  might  otherwise  have  to  *bear,  but  that  the  prin- 
ciple,  if  allowed,  would  lead  to  such  consequences  in  general :"  Moore  L  ~  J 
V.  Frowd,  3  My.  &  Cr.  50;  and  see  New  v.  Jones,  1  Hall  &  T.  634;  Hamil- 
ton V.  Wri<jht,  9  C.  &  F.  111. 

And  so  strict  is  the  rule,  that,  although  the  trustee  or  executor  may,  by  the 
direction  of  the  author  of  the  trusts,  have  carried  on  a  trade  or  business  at  a 
great  sacrifice  of  time,  he  will  be  allowed  nothing  as  a  compensation  for  his 
personal  trouble  or  loss  of  time.  Thus  in  Brocksopp  v.  Barnes,  5  Madd,  90, 
the  testator  directed  certain  businesses  to  be  carried  on  by  his  trustees  and 
executors,  and  directed  several  onerous  trusts  to  be  performed  by  his  trustees, 
but  gave  no  legacies  or  reward  to  them  for  their  trouble.  Upon  a  petition 
being  presented  by  one  of  them  to  ascertain  what  would  be  proper  to  be  allowed 
to  him  as  a  compensation  or  recompense  for  his  loss  of  time,  personal  trouble, 
and  expense  in  the  management  and  settlement  of  the  testator's  affairs,  Sir 
John  Leach,  V.  C,  said,  "  The  trustee  is  of  course  entitled  to  all  reasonable 
expenses  which  he  may  have  incurred  in  the  conduct  of  the  trust,  and  requires 
no  order  for  that  purpose ;  but  the  general  rule  must  be  applied  to  him,  that 
a  trustee  is  not  entitled  to  compensation  for  personal  trouble  and  loss  of  time." 

The  rule  is  also  applicable  to  an  executor  carrying  on  the  business  of  his 
deceased  partner  :  Burden  v.  Burden,  1  V.  &  B.  170;  Siocken  v.  Dawson,  6 
Beav.  371 ;  and  an  executor  or  trustee  will  not  be  entitled  to  make  a  profit 
out  of  his  trust  by  his  professional  business.  Thus,  a  factor  acting  as  executor, 
is  not  so  entitled,  {Scattergood  v.  Harrison,  Mos.  128 ;)  nor  is  a  commission 
agent,  (^Sheriff  y.  Axe,  4  Russ.  33.)  So,  an  executor  and  trustee,  acting  as 
auctioneer  in  the  sale  of  the  trust  property,  cannot  charge  for  commission, 
(^Kirkman  v.  Booth,  11  Beav.  273 ;)  nor  can  an  attorney  or  solicitor  charge 
his  cestui  que  trust  but  for  expenses  and  costs  out  of  pocket,  (^Neio  v.  Jones,  1 
Hall.  &  T.  632;  Bainbrigge  v.  Blair,  8  Beav.  588;  Todd  v.  Wilson,^  Beav. 
486 ;  Gomley  v.  Wood,  3  J.  &  L.  702  ;)  nor  can  his  partner,  Collins  v.  Carey, 
2  Beav.  129;  Christophers  \ .  White,  10  Beav.  523;)  but  the  costs  of  his 
town  agent  in  a  cause  will  be  allowed,  {Burge  v.  Brutton,  2  Hare,  373;)  and 
under  peculiar  circumstances  an  inquiry  may  be  directed  to  give  some  remu- 
neration or  compensation  to  a  solicitor  for  his  loss  of  time  and  trouble,  (3Iar- 
shull  V.  Ilolloway,  2  Swanst.  453  ;  Bainbrigge  v.  Blair,  8  Beav.  595.) 

Upon  the  same  principle  an  assignee  of  a  bankrupt,  who  had  acted  as  soli- 
citor to  the  fiat,  although  allowed  to  charge  for  his  clerk's  time,  employed  in 
the  business  of  the  bankruptcy  as  costs  out  of  pocket,  was  not  allowed  any 
profit  thereupon  :  Ex  parte  Newton,  3  Be  G.  &  Sm.  584. 


420         COMMISSIONS     OF     TRUSTEES     AND     EXECUTORS. 


*A  chairman  or  director  of  a  Railway  Company  stands  in  a  fiduciary 
[*210]  j.g|f^|.ion  towards  tlie  Company,  and  will  not  be  allowed  to  derive  any 
profit  beyond  bis  salary  from  his  office.  See  York  and  North  Midland  Rail- 
way Company  v.  Iludxon,  16  Beav.  485,  500. 

As  a  mortgagee  with  a  power  of  sale  stands  in  a  fiduciary  relation  with  re- 
gard to  the  mortgagor,  he  will  not  be  allowed,  either  alone  or  conjointly  with 
his  partner  in  any  business,  to  derive  any  profit  from  the  sale.  Thus,  in  the 
recent  case  of  Mattliison  v.  Clarke,  3  Drew.  3,  a  mortgagee  with  power  of  sale 
employed  the  firm  of  auctioners,  of  which  he  was  a  member,  to  sell  the  mort- 
gaged property  for  him.  It  was  held  by  Sir  R.  T.  Kindersley,  V.  C,  that 
they  were  not  entitled  to  any  commission.  So  in  another  recent  case  where 
13.,  a  solicitor,  one  of  the  mortgagees  with  a  power  of  sale,  arranged  with  another 
solicitor  to  "act  as  his  agent"  in  the  matter  of  the  mortgage  on  agency  terms  j 
it  was  held  by  Sir  J.  Romilly,  M.  R.,  that  a  sum  of  money  paid  to  B.  as  his 
share  of  the  profits,  inured  for  the  benefit  of  the  persons  entitled  to  the  equity 
of  redemption.     In  re  Taylor,  18  Beav.  165. 

A  general  release,  where  the  cestui  que  trust  has  been  assisted  by  an  inde- 
pendent solicitor,  may  prevent  a  cestui  que  trust  from  insisting  upon  his  right 
to  have  a  settled  account  opened  against  a  solicitor  being  a  trustee,  although 
he  may  have  charged  for  professional  services :  Stanes  v.  Parker,  9  Beav. 
385  ;  In  re  Sherivood,  3  Beav.  338,  341.  Secus  if  he  had  not  such  assist- 
ance :   Todd  V.  Wilson,  9  Beav.  486. 

Althou"-h  it  is  clear  that  a  solicitor  made  party  to  a  cause  as  trustee,  who 
either  acts  for  himself  or  employs  his  partner  to  do  so,  will  be  allowed  his  costs 
out  of  pocket  only,  (Lyon  v.  Baker,  5  De  G.  &  Sm.  622,)  it  was  upon  no  very 
intelligible  principle  held  by  Lord  Cottenham,  in  Cradock  v.  Fijier,  (1  Hall 
&  T.  617   628 ;  1  Mac.  &  Gr.  664,  affirming  the  decision  of  Sir  L.  Shadwell, 
V.  C.    17  Sim.  41,)  that  the  circumstance  of  a  solicitor  being  a  trustee  will 
not  prevent  him  from  receiving  his  usual  costs,  where  he  acts  as  solicitor  in  a 
suit  for  any  of  the  cestuis  que  trust,  or  where  he  acts  for  himself  and  his  co- 
trustees  or  cestuis  que  trust  jointly,  provided  the  costs  are  not  increased  by 
his  being  one  of  the  parties  for  whom  such  joint  appearance  is  made.     And 
see  Fraser  v.  Palmer,  4:  Y.  &  C  Exch.  Ca.  517  ;  but  see  Bainhriggey.  Blair, 
8  Beav.  588  ;  and  Mansonv.  Bailie,  2  Macq.  80,  where  Lord  Cranworth,  C, 
observed,  "  that  he  was  inclined  to  think  that  the  true  principle  was  consider- 
ably trenched  upon  by  Lord  Cottenham,  when  he  said  that  a  solicitor  might 
act  as  a  solicitor  for  his  co-trustee  in,  and  be  allowed  professional  charges,  as 
he  apprehended  that  the  true  principle  is,  that  each  *trustce  should 
[*211]   ^g  ^  check  and  control  on  each  and  all  of  the  co-trustees,  a  principle 
which  was  placed  in  danger  by  the  allowance  of  a  pecuniary  profit,  (p.  82.) 
Lord  Brougham  also  disapproved  of  the   decision   of  Cradock  v.  Piper,  and 
expressed  great  doubts  as  to  the  soundness  of  that  decision  "to  the  length  to 
which  it  goes."  p.  91. 

Certainly  there  is  no  inclination  to  extend  the  doctrine  laid  down  by  Lord 
Cottenham  in  Cradock  v.  Pilfer,  for  it  has  been  decided  that  it  docs  not  apply 


EOBINSON     V.     PETT.  421 

to  the  case  of  a  solicitor  being  a  trustee  and  acting  for  himself  and  co-trustee 
in  the  administration  of  the  trust  estate  out  of  court :  Lincoln  v.  Windsor,  9 
Hare,  158 ;  Broughton  v.  Browjhton,  2  Sm.  &  Giff.  422 ;  5  De  G.  Mac.  & 
G.  160. 

Where  a  solicitor,  who  is  a  trustee,  is  a  defendant  as  a  trustee,  and  is  held 
to  be  entitled  to  his  costs,  the  course  of  the  Court  is  to  direct  them  to  be  taxed  as 
between  solicitor  and  client,  (^Yorh  v.  Brown,  1  Coll.  260.)  In  a  recent  case, 
where  a  mortgagee  had  acted  as  his  own  solicitor,  in  a  suit  in  defence  of  his  own 
title,  Sir  R.  T.  Kindersley,  V.  C,  refused  to  allow  him  as  against  a  second 
mortgagee,  any  other  costs  except  his  costs  out  of  pocket :  Sclater  v.  Cottam,  3 
Jur.  N.  S.  630. 

There  are,  however,  some  few  exceptions  to  the  rule  laid  down  in  the  prin- 
cipal case.  Thus,  the  trustees  and  guardians  managing  the  estates  of  West 
India  proprietors,  according  to  the  Acts  of  Assembly,  are  entitled  to  a  com- 
mission not  above  £6  per  cent,  as  long  as  they  personally  take  care  of  the 
management  and  improvement  of  the  estates  committed  to  their  charge  ;  but 
not  if  they  leave  the  island  and  trust  the  management  to  others,  acting  as 
attorneys,  (Chambers  v.  Goldivin,  5  Ves.  834 j  9  Ves.  254,  257,  267,  273; 
Denton  v.  Davy,  1  Moore,  P.  C.  C.  15;  and  see  Henckell  v.  Daly,  lb.  51.) 
But  although  they  have  no  right  to  be  paid  their  commission  during  absence, 
they  are  entitled  to  what  they  have  actually  paid  to  others  for  the  management 
of  the  estate,  provided  the  payments  be  in  themselves  reasonable ;  as  to  which, 
if  it  be  disputed,  an  inquiry  will  be  directed,  {Forrest  v.  Elwes,  2  Mer.  68 ;) 
and  although  a  trustee  individually  abstain  from  acting  in  the  trusts  of  a  will, 
yet  if  he  is  qualified,  and  is  ready  and  willing  to  act  when  called  upon  by  his 
co-trustee,  he  is  entitled  to  a  share  of  the  commission  under  the  Jamaica  Act, 
24  Geo.  2,  c.  10,  s.  8;  {Grant  v.  Campbell,  1  Moore,  P.  C.  C.  43;)  and 
mortgagees  in  possession  are  not  entitled  to  any  commission,  except  what  is 
paid  by  them  to  the  factor  for  commission :  Chambers  v.  Goldwin,  5  Ves. 
837  ;  9  Ves.  268. 

So,  an  executor  appointed  in  the  East  Indies  is  entitled,  in  passing  his 
accounts  in  the  courts  of  equity  in  this  country,  to  the  ^commission 
of  £5  per  cent,  upon  the  receipts  or  payments,  according  to  the  prac-  ■-  ■^^-'-1 
tiee  in  the  East  Indies.  See  Chetham  v.  Lord  Audley,  4  Ves.  72,  where 
Lord  Rosslyn  allowed  the  commission,  observing,  that  the  appointment  of  an 
executor  in  India,  no  legacy  being  given  to  him,  was  the  appointment  of  an 
agent  for  the  management  of  the  estate ;  that  there  would  be  no  possibility  of 
getting  the  business  done  at  all  without  the  allowance ;  and  if  the  executors 
in  England  were  to  get  a  person  to  do  the  business  in  India,  they  could  not 
get  it  done  so  cheap.  [In  the  recent  case  of  Matthew  v.  Bagshaice,  14  Beav. 
123,  it  was  said,  that  by  the  law  of  England  it  had  long  been  settled  that  Indian 
executors,  while  resident  in  India,  were  entitled  to  £5  per  cent,  on  the  assets 
collected  by  them,  and  this  was  held  to  be  properly  calculated  on  the  gross 
assets,  and  not  merely  on  the  balance  remaining  after  satisfying  the  claim  of 
the  agents  for  their  advances,  interest,  and  commissions.] 


422         COMMISSIONS     OF     TRUSTEES     AND     EXECUTORS. 

But  an  Indian  executor  will  not  be  entitled  to  commission  if  he  has  a  legacy 
for  his  trouble,  nor  can  he,  after  a  long  lapse  of  time,  be  admitted  to  renounce 
the  legacy  in  order  that  he  may  claim  the  commission  :  Freeman  v.  Fairlie, 
3  Mer.  24. 

The  managing  owner  of  a  ship  is,  it  seems,  competent  to  appoint  himself  to 
act  as  broker  to  the  ship  in  collecting  and  distributing  freight,  there  being  no 
incompatibility  between  those  services,  (as  it  appears  there  would  be  between 
the  services  of  ship's  chandler  or  ship's  carpenter,)  and  his  fiduciary  character 
as  managing  owner  :  see  Smith  v.  Lat/,  3  K.  &  J.  105,  in  which  case,  how- 
ever, before  allowing  the  managing  owner  a  commission  in  respect  of  the  ser- 
vices in  question.  Sir  W.  Page  Wood,  V.  C,  directed  an  inquiry,  whether 
according  to  the  custom  of  shipowners  or  otherwise,  he  being  managing  owner, 
was  entitled  to  any,  and  what  commission  in  respect  of  duties  performed  by 
him,  and  which  duties  are  ordinarily  performed  by  ship-brokers. 

The  creator  of  the  trust,  as  was  admitted  by  Sir  Joseph  Jekyll,  M.  11.,  in 
the  principal  case,  may  direct,  generally,  compensation  to  be  made  to  an  exe- 
cutor or  trustee,  for  his  care  and  trouble ;  or  he  may  himself  fix  it  at  a  parti- 
cular sum  of  money,  or  a  salary.  See  Wehb  v.  The  Earl  of  Sha/tesburj/,  7 
Ves.  480,  and  Baker  v.  Martin,  8  Sim.  25^  in  which  case  a  testator  had 
directed  that  £100  a  year  should  be  annually  paid  to  one  of  his  executors,  for 
his  trouble  in  superintending  his  concerns,  until  a  final  settlement  of  his  affairs 
should  take  place.  The  executor  proved  and  acted.  Some  time  after  the 
testator's  death,  a  suit  was  instituted  for  the  administration  of  his  estate,  but 
no  receiver  was  appointed,  and  some  of  the  assets  were  still  outstanding;  it 
was  held  by  Sir  L.  Shadwell,  V.  C,  that  the  annuity  had  not  ceased,  as  it  was 
not  shown  that  the  trouble  of  the  executors  had  ceased. 

But  where  the  creator  of  the  trust  does  not  himself  fix  the  amount  of  com- 
pensation, a  reference  will  be  directed  to  settle  what  will  be  a  proper  allow- 
ance:  Ellison  v.  Aire)/,  1  Ves.  115;  Willis  v.  Kibble,  1  Beav.  559;  Jackson 
r*-71^1  ^'  -^^f*"'^*^^^")  '^  J-  ^  ^-  "^02-  ^o>  ^s  *observed  by  Lord  Langdale,  M. 
*-  "  a.,  in  Bainbrigge  v.  Blair,  8  Beav.  597,  a  testator,  though  knowing 
that  if  his  trustee  acted  as  solicitor,  and  were  allowed  to  make  his  professional 
charges,  he  would  be  enabled  to  make  business  for  himself,  might,  neverthe- 
less, insert  an  authority  in  the  will,  permitting  it,  (and  this  is  not  unfrequently 
done,)  there  would  be  then  no  question  about  the  matter. 

And  although  trustees  or  executors  .will  not  generally  be  entitled  to  any 
allowance  for  their  trouble,  they  may,  nevertheless,  contract  with  their  cestui 
que  trust  to  receive  some  compensation  for  acting,  or  to  make  professional 
charges  for  acting.  Such  contract,  however,  would  be  most  carefully  watched 
by  the  Court,  and,  unless  it  were  perfectly  fair,  and  obtained  without  any 
undue  pressure  upon  the  cestui  que  trust,  would  not  be  enforced.  See  Ayliffc 
v.  Murray,  2  Atk.  58,  in  which  case  two  persons,  executors  and  trustees  under 
a  will,  refused  to  prove  the  will,  or  act  in  the  trust,  or  suffer  the  cestui  que 
trust  to  take  out  letters  of  administration  cum  testamento  annexo,  till  he  had 
executed  a  deed  by  which  he  was  to  pay  £100  to  Ayliffe,  one  of  the  executors, 


ROBINSON     V.     PETT.  423 


who  was  the  solicitor  who  drew  tlie  will,  and  £200  to  the  other,  over  and  above 
their  legacies,  within  six  months  after  they  should  have  exhibited  an  inven- 
tory. Upon  a  bill  being  brought  for  a  specific  performance  of  the  contract, 
and  for  an  account.  Lord  Hardwicke  declared,  that  the  deed  was  unduly  ob- 
tained, and  decreed  that  no  allowance  should  be  ]uade  for  the  sum  of  £100  and 
£200.  "  With  regard  to  the  merits,"  observed  his  Lordship,  ''  whether,  upon 
general  grounds,  a  trustee  may  make  an  agreement  with  his  cestui  que  trust 
for  an  extraordinary  allowailce,  over  and  above  what  he  is  allowed  by  the  terms 
of  the  trust,  I  think  there  may  be  cases  where  this  Court  would  establish  such 
agreements,  but  at  the  same  time  would  be  extremely  cautious  and  wary  in 
doing  it. 

"  In  general,  this  Court  looks  upon  trusts  as  honorary,  and  a  burthen  upon 
the  honor  and  conscience  of  the  person  intrusted,  and  not  undertaken  upon 
mercenary  views ;  and  there  is  a  strong  reason,  too,  against  allowing  anything 
beyond  the  terms  of  the  trust,  because  it  gives  an  undue  advantage  to  a  trustee 
to  distress  a  cestui  que  trust;  and  therefore,  this  Court  has  always  held  a  strict 
hand  upon  trustees  in  this  particular.  If  a  trustee  comes  in  a  fair  and  open 
manner,  and  tells  the  cestui  que  trust  that  he  will  not  act  in  such  a  trouble- 
some and  burthensome  office  unless  the  cestui  que  trust  will  give  him  a  further 
compensation,  over  and  above  the  terms  of  the  trust,  and  it  is  contracted  for 
between  them,  I  will  not  say  this  Court  will  set  it  aside;  though  there  is  no 
instance  where  they  have  confirmed  *such  a  bargain.  ...  I  consider 
the  case  in  this  light : — Two  trustees  are  making  an  ill  use  of  an  autho-  L  "  -I 
rity  they  had  under  the  will,  to  extort  a  reward  from  a  cestui  que  trust.  If 
they  had  told  him,  Give  us  a  further  reward,  or  we  will  renounce,  they  had 
acted  fairly,  and  something  may  have  been  said  in  favor  of  the  contract.  The 
personal  estate  was  vested  in  them  before  probate,  and  could  not  be  got  out  of 
them  without  an  actual  renunciation  j  the  real  estate  likewise  vested  in  them, 
and  could  not  be  taken  out  of  them  but  by  an  actual  assignment;  and,  sensible 
of  these  difficulties  upon  the  defendant,  the  plaintiflfs  would  not  act,  in  order 
to  force  him  into  their  terms. 

"  This  case  has  been  compared  to  several  other  cases  of  fraud,  and,  amongst 
the  rest,  of  marriage  brokage  bonds,  and  not  improperly;  for  the  person  who 
has  the  reward  there,  has  as  much  trouble  as  the  trustees  have  here,  and  the 
party  giving  the  reward  in  those  cases,  full  as  willing  as  the  defendant  in  this; 
and  yet  the  Court  always  set  those  bargains  aside  as  unconscionable.  Consider 
the  ill  consequences  of  such  a  case ;  suppose  it  should  be  necessary  that  a  will 
should  be  immediately  proved,  as  in  the  case  of  a  widow  and  children.  Shall 
a  trustee  in  whom  the  testator  reposed  a  trust  and  confidence,  and  depended 
upon  his  honor  and  kindness,  insist  upon  such  hard  terms  as  to  have  an  unrea- 
sonable reward,  before  he  will  either  prove  the  will  or  act  in  the  trust  ?" 

In  the  recent  case  of  In  re  Wyche,  11  Beav.  209,  on  an  application  within 
twelve  months.  Lord  Langdale  refused  to  order  the  taxation  of  a  bill  paid  under 
other  professional  advice,  to  a  trustee  who  had  acted  as  solicitor  for  a  lady,  he 
having,  however,  first  declared  that  he  would  not  act,  except  on  the  ordinary 


424         COMMISSIONS     OF     TRUSTEES     AND     EXECUTORS. 

terms  of  being  paid  as  between  solicitor  and  client;  and  the  cestui  que  trust 
acquiesced  in  this  proposal,  and  signed  a  retainer  in  such  special  terms  as  to 
provide  for  it.  "  It  is  said,"  observed  his  Lordship,  "that  it  is  extremely 
difficult  for  a  trustee  against  a  cestui  que  trust,  or  for  a  solicitor  against  a 
client,  to  make  the  client  pay  more  than  the  rules  of  law  allow.  I  will  not 
venture  to  say,  that,  in  such  a  case  as  this,  it  cannot  be  done ;  because,  if  the 
parties  understand  the  principle  that  a  trustee,  acting  as  a  solicitor  in  the  trust 
matters,  is  only  entitled  to  the  costs  out  of  pocket, — if  the  cestui  que  trust  has 
clear  knowledge  and  proper  protection,  I  should  hardly  say  that  such  an  agree- 
ment is  illegal,  or  that  it  cannot  be  carried  into  effect.  This  lady,  from  the 
first,  did  know  that  a  trustee,  acting  as  a  solicitor,  was  not  entitled  to  ordinary 
costs  as  between  solicitor  and  client;  and  it  does  appear  that  she  had  other 
professional  advice  besides  that  given  by  the  trustee  himself.  See,  also.  In 
re  Sherwood,  3  Beav.  838. 

P^p,r-|  *And  even  if  a  trustee  makes  a  valid  contract  with  his  cestui  que 
trust  for  compensation  for  the  trouble  incidcQt  to  the  trust,  it  will  not 
be  allowed  if  the  trustee,  in  consequence  of  his  death  or  otherwise,  fail  to  com- 
plete his  contract.  Thus,  in  Gotihl  v.  Fleetwood,  Mich.  1732,  at  the  Rolls, 
an  executor  in  trust,  who  had  no  legacy,  and  where  the  execution  of  the  trust 
■was  likely  to  be  attended  with  trouble,  at  first  refused,  but  afterwards  agreed 
with  the  residuary  legatees,  in  consideration  of  100  guineas,  to  act  in  the  exe- 
cutorship, and  he  dying  before  the  execution  of  the  trust  was  completed,  his 
executors  brought  a  bill  to  be  allowed  these  100  guineas  out  of  the  trust-money 
in  their  hands,  insisting  that  the  residuary  legatees  might  as  well  make  a  con- 
tract with  the  executor  touching  the  surplus,  (which  was  their  own  property,) 
as  the  testator  himself,  and  that  no  harm  could  happen  thereby  to  the  trust 
estate;  but  Sir  Joseph  Jekyll,  M.  Jl.,  said,  that  all  bargains  of  this  kind 
ought  to  be  discouraged,  as  tending  to  eat  up  the  trust ;  and  here  the  executor 
had  died  before  he  had  finished  the  affairs  of  the  trust.  Wherefore  the  plain- 
tiff's demand  was  disallowed:  3  P.  Wms.  251,  n.  (A);  2  Eq.  Ca.  Ab.  453, 

Nor  will  a  contract  by  a  trustee  with  his  cestui  quo  trust  for  professional 
charges  be  enforced,  unless  in  distinct  and  express  terms  it  takes  the  trustee 
out  of  the  general  rule.  Thus  in  Moore  v.  Frowd,  3  My.  &  Cr.  45,  the  plain- 
tiff, a  lady,  conveyed  property  to  four  attorneys  and  solicitors,  upon  trust  to 
sell;  and  directed  that  the  trust  moneys  should  be  applied  (inter  alia)  in  pay- 
ment of  the  costs,  charges,  and  expenses  of  preparing  the  indenture  of  release, 
and  all  the  exj>ensex,  dinhursements,  and  charges^,  already  or  thereafter  to  he 
incurred  or  suntainrd,  or  home  hy  the  trustees^  or  the  trustees  or  trustee  for  the 
time  heinr/,  either  in  professional  business,  journeys,  or  otherwise,  for  the  pur- 
pose of  negotiating  or  pcrfofniir)g  the  agreements,  trusts,  and  purposes  there- 
inbefore mentioned  or  directed  to  be  carried  into  execution;  and  also  all  the 
costs,  charges,  and  expenses  of  the  persons  to  be  employed  by  them  as  sur- 
veyors, &c.  And  it  was  further  provided,  that  the  trustees  should,  out  of  the 
trust  moneys,  deduct,  retain  tu,  and  reimburse  themselves  all  such  reasonable 


ROBINSON     V.      PETT.  425 

costs,  charges,  and  expenses  as  they  or  any  of  them  should  or  might  sustain, 
expend,  or  he  j:>ut  unto,  in  or  about  the  execution  of  all  or  any  of  the  trusts 
thereby  in  them  reposed,  such  costs,  charges,  and  expenses  to  be  reckoned, 
stated,  and  paid  as  between  attorney  and  client.  The  trustees  having  brought 
in  four  bills,  to  the  amount  of  1709^.  2s.  for  professional  charges,  it  was  con- 
tended, for  the  plaintiff,  that  they  were  only  entitled  to  costs  *out  of  r^Q-ip-i 
pocket ;  and  Lord  Cottenham  held,  that  the  Master,  in  taking  the 
accounts,  was  not  to  allow  to  them  any  professional  charges,  or  charges  for 
loss  of  time  or  other  emoluments,  but  to  allow  only  such  charges  and  expenses 
actually  paid  by  them  out  of  pocket,  as  he  should  find  to  have  been  properly 
incurred  and  paid  by  them.  "  That  all  these  bills,"  observed  his  Lordship, 
"  are  to  be  examined  and  taxed,  is  not  disputed ;  but  the  question  is,  whether 
such  taxation  is  to  be  a  taxation  of  a  solicitor's  bill,  in  the  usual  course,  be- 
tween solicitor  and  client,  or  whether  the  Master  is  to  be  directed  to  allow 
only  costs  out  of  pocket  properly  expended. 

"  The  first  question  is,  whether  the  deed  of  trust  disposes  of  this  question ; 
because  the  parties  may,  by  contract,  make  a  rule  for  themselves,  and  agree 
that  a  trustee,  being  a  solicitor,  shall  have  some  benefit  beyond  that  which, 
without  such  contract,  the  law  would  have  allowed ;  but,  in  such  a  case,  the 
agreement  must  be  distinct,  and  in  its  terms  explain  to  the  client  the  effect  of 
the  arrangement;  and  the  more  particularly  when  the  solicitor  for  the  client, 
becoming  himself  a  trustee,  has  an  interest,  personal  to  himself,  adverse  to 
that  of  the  client.  It  is  not  easy  in  such  a  case  to  conceive  how,  consistently 
with  the  established  rules  respecting  contracts  between  solicitors  and  their 
clients,  a  solicitor  could  maintain  such  a  contract,  made  with  his  client  for  his 
own  benefit,  the  client  having  no  other  professional  adviser,  and  in  the  absence 
of  all  evidence,  and  of  any  probability,  of  the  client,  (a  woman,  too,)  having 
been  aware  of  her  rights,  or  of  the  rule  of  law,  or  of  the  effect  of  the  contract; 
but  the  necessity  for  following  up  these  considerations  does  not  arise  in  this 
case,  unless  the  deed  contains  a  distinct  agreement  for  this  purpose. 

"  There  are  two  parts  of  the  deed  applicable  to  this  point :  first,  that  part 
in  which  the  trusts  are  declared,  wherein  it  is  pi'ovided  that  all  costs,  charges, 
and  expenses  of  the  deed,  and  all  expenses,  disbursements,  and  charges, 
already  or  hereafter  to  be  incurred,  sustained,  or  home  by  the  trustees,  or  any 
of  them,  either  in  professional  business,  journeys,  or  otherwise,  for  the  purpose 
of  negotiating  or  performing  the  agreements,  trusts,  and  purposes  before  men- 
tioned, and  all  costs,  charges,  and  expenses  of  persons  to  be  employed  by  them 
as  surveyors,  &c.,  and  all  other  expenses  of  carrying  the  trusts  into  execution, 
shall  be  paid  in  the  first  place  out  of  the  produce  of  the  intended  sales. 

''  Now,  the  costs  in  question  being  the  ordinary  remunerations  of  a  solicitor, 
as  distinguished  from  the  costs  out  of  pocket,  cannot  be  considered  as  charges 
and  *expenses  incurred,  sustained,  or  borne  by  the  trustees ;  but  such  p^^-.  ^-i 
expressions  in  terms  apply  to  payments  made,  or  liabilities  incurred. 

''  The  next  provision  is  more  specific.  It  provides  that  each  trustee  is  to 
be  at  liberty  to  retain  and  reimburse  himself  all  such  reasonable  costs,  charges, 


426         COMMISSIONS     OF     TRUSTEES     AND     EXECUTORS. 


and  expenses  as  lie  may  sustain  or  he  put  unto,  sucli  costs,  charges,  and  ex- 
penses, to  be  reckoned,  stated,  and  paid  as  between  attorney  and  client ;  but 
this  provision  does  no  more  than  the  rule  of  law  would  have  done,  a  trustee's 
costs  being  taxed  as  between  attorney  and  client.  And  what  are  the  costs  so 
to  be  taxed  ?  Costs  which  the  trustee  may  sustain  or  be  put  unto, — terms 
wholly  inapplicable  to  sums  claimed  as  remuneration. 

"There  is  nothing  in  either  of  these  provisions  which  is  peculiarly  applica- 
ble to  the  case  of  the  solicitor  being  also  trustee.  It  cannot,  therefore,  be 
assumed  that  the  intention  was  to  provide  for  some  other  mode  of  dealing  with 
that  union  of  characters  than  what  the  law  would  have  enforced ;  and  still  less, 
that,  under  such  provision,  a  solicitor  dealing  with  his  client  can  be  permitted 
to  claim  that  which,  without,  at  least,  a  specific  contract  with  the  client,  and 
proof  that  the  client  was  fully  cognizant  of  her  legal  rights,  independently  of 
such  contract,  and  of  the  effect  and  legal  consequences  of  the  act  upon  such 
legal  rights,  he  would  not  be  entitled  to  claim." 

A  trustee  may  contract  with  the  Court,  that  he  will  not  undertake  the  trust 
without  proper  compensation ;  and  if  he  have  undertaken  the  trust  upon  the 
understanding  that  application  should  be  made  to  the  Court  for  compensation, 
a  reference  will  be  made  to  the  Master  to  ascertain  and  settle  what  would  be 
a  reasonable  allowance  both  for  his  past  and  future  services.  8ee  Marshall  y. 
Holloway,  2  Swanst.  432,  453,  454 ;  Brochsopp  v.  Barnes,  5  3Iadd.  90 ;  Mor- 
rison v.  Morrison,  4  My.  &  Cr.  215. 

But,  although  trustees  and  executors  will  not,  in  the  absence  of  contract, 
be  allowed  any  remuneration  for  their  own  trouble  and  loss  of  time,  they  may, 
in  special  cases,  employ  agents,  whose  expenses  will  be  allowed  out  of  the 
estate.  Thus,  a  trustee,  upon  making  out  a  proper  case,  may  employ  a  bailiff 
to  manage  an  estate  and  receive  the  rents;  (^Bonithon  v.  Hichmore,  1  Vern. 
316 ;  Stewart  v.  Hoare,  2  Bro.  C.  C.  663 ;)  even  although  a  recompense  may 
have  been  given  to  him  by  the  creator  of  the  trust  for  his  trouble.  Thus,  in 
Wiikini<on  V.  Wilkinson,  2  S.  &  S.  237,  a  testator  gave  annuities  of  five  guineas 
each  to  his  trustees,  for  the  care  and  trouble  they  might  have  in  the  execution 
of  the  trusts,  and  appointed  them  executors.  Amongst  other  property,  the 
r*v>isi  testator  was  entitled  to  about  fifty  *houses  in  London,  thirty-four  of 
which  were  let  at  weekly  rents.  The  trustees  employed  a  person  to 
collect  those  rents,  and  the  Master,  on  passing  their  accounts,  allowed  the 
salary  they  had  paid  to  him;  and  Sir  J.  Leach,  V.  C,  overruled  an  excep- 
tion taken  to  the  Master's  report  on  account  of  that  allowance.  "  It  does  not 
appear  to  me,"  observed  his  Honor,  '<  that  the  annuity  of  five  guineas  to  each 
trustee  makes  any  difference  in  this  case.  It  is  given  to  them  as  a  recom- 
pense for  the  care  and  trouble  which  will  attend  the  due  execution  of  their 
office  ;  and,  if  it  be  consistent' with  the  due  execution  of  their  office  that  they 
should  employ  a  collector  to  receive  the  rent,  they  will  still  be  entitled  to  the 
annuity.  A  provident  owner  might  well  employ  a  collector  to  receive  such 
rent;  and  the  labor  of  such  collection  cannot  be  imposed  upon  trustees." 

So  an  executor,  although  he  may  be  a  solicitor,  may  employ  another  solicitor 


ROBINSON     V.     PETT.  427 


to  do  business  for  him  in  the  management  of  the  testator's  affairs;  (Macna- 
mara  v.  Jones,  2  Dick.  587;  Stanes  v.  Parker,  9  Beav.  389;)  or  an  account- 
ant, if  the  accounts  are  of  a  difficult  or  complicated  nature;  {Ilendev&on  v. 
M^Iver,  3  Madd.  275 ;  New  v.  Jones,  1  Hall  &  T.  634 ;)  or  an  agent  to  collect 
debts  at  a  commission  ;  but  the  Court  will  reduce  it  if  too  high.  See  Weiss  v. 
Dill,  3  My.  &  K.  26,  where  an  executor,  having  charged  for  the  employment 
of  an  agent,  at  £5  per  cent.,  to  collect  debts  to  the  amount  of  £2000,  an  ex- 
ception, taken  to  the  Master's  report,  who  allowed  only  £22  per  cent.,  was 
overruled  by  Sir  John  Leach,  M.  K.  ''  Generally  speaking,"  said  his  Honor, 
"  executors  are  not  allowed  to  employ  an  agent  to  perform  those  duties,  which^ 
by  accepting  the  office  of  executors,  they  have  taken  upon  themselves ;  but 
there  may  be  very  special  circumstances  in  which  it  may  be  thought  fit  to 
allow  them  such  expenses  as  they  may  have  incurred  by  the  employment  of 
agents.  It  is  for  the  Master  to  determine  whether  an  executor,  who  makes  a 
claim  for  the  employment  of  an  agent,  ought  to  be  allowed  to  charge  his  tes- 
tator's estate  with  such  a  burthen.  The  Master  has  here  thought  that  the 
executor  ought  not  to  be  allowed  to  charge  the  testator's  estate  with  the  whole 
commission  claimed,  but  that  £2  J  per  cent,  is  a  fit  allowance.  I  have  some 
doubt  whether  in  this  case  the  Master  ought  to  have  made  any  allowance; 
but  with  the  allowance  of  £2^^  per  cent,  which  he  has  made,  the  defendants 
must  be  content."  And  see  Hopkinson  v.  Roe,  1  Beav.  180;  Dau  v.  Croft, 
2  Beav.  488. 

Upon  the  principle,  that  a  trustee  should  not  profit  by  his  trusts,  a  person, 
whether  he  is  sole  trustee  or  a  trustee  jointly  with  others,  will  not,  in  general, 
be  appointed  receiver  with  a  salary,  for  this  would  be  a  mode  of  giving  r,-i;.9ini 

a  trustee  *emolument;   (^Anon.,  3  Ves.  515; v.  Jolland,  8  Ves. 

72;  Sykes  v.  Hastings,  11  Ves.  363;  Sutton  v.  Jones,  15  Ves.  584;  Nichol- 
son V.  Tutin,  3  K.  &  J.  159 ;)  "  unless  no  one  else  can  be  procured  who  will 
act  with  the  same  benefit  to  the  estate,  where  there  is  a  necessity,  from  the 
circumstance,  that,  by  any  one  else,  the  estate  would  not  be  so  well  managed;" 
Sykes  V.  Hastings,  11  Ves.  364,  per  Lord  Eldon ;  Newport  v.  Bury,  23  Beav. 
30;)  and  even  where  a  trustee  offers  to  act  as  receiver  without  a  salary,  the 
Court  will  only  appoint  him  to  the  office  on  the  ground  that  it  is  for  the  benefit 
of  the  estate,  because  it  is  the  duty  of  the  trustee  to  examine  with  an  adverse 
eye,  and  see  that  the  receiver  does  his  duty  :  Hihhert  v.  Jenkins,  cited  11  Ves. 
363,  364.  "  The  consequence  is,"  says  Lord  Eldon,  "  the  case  of  appointing 
a  trustee  to  be  receiver  is  extremely  rare,  and  only  where  he  will  act  without 
emolument :"  SyJces  v.  Hastings,  11  Ves.  364.  It  is  no  objection,  however, 
that  a  person  is  trustee  to  preserve  contingent  remainders :  Sutton  v.  Jones, 
15  Ves.  587.  So,  it  is  competent  for  the  Court,  as  a  matter  of  discretion, 
to  appoint  an  executor  and  trustee,  consignee,  with  the  usual  profits ;  and 
where  a  discretion  of  that  kind  has  been  exercised  and  acted  upon,  it  will 
not,  at  a  subsequent  period,  be  withdrawn  :  Marshall  v.  Holloway,  2  Swanst. 
432;  Morrison  v.  Morrison,  4  My.  &  Cr.  215,  224. 

Upon  the  same  principle,  if  a  trustee  or  executor  keeps  in  his  own  posses- 


428         COMMISSIONS     OF     TRUSTEES     AND     EXECUTOllS. 

sion  trust  moneys  which  ought  to  have  been  invested,  although  it  be  not 
shown  that  he  made  a  profit  by  so  doing,  he  will  be  charged  interest,  at  a  rate 
which  may  be  varied  at  the  discretion  of  the  Court.  See  Tehhs  v.  Carpenter, 
1  Madd.  290,  306,  where  Sir  T.  Plumer,  after  an  elaborate  examination  of  the 
authorities,  observed,  that  it  appeared  that  a  distinction  had  been  taken,  as  in 
every  moral  point  of  view  there  ought  to  be,  between  negligence  and  corruption 
in  executors.  A  special  case  is  necessary  to  induce  the  Court  to  charge  exe- 
cutors with  more  than  £4  per  cent,  upon  the  balances  in  their  hands  :  Court  v. 
Eoherfs,  6  C.  &  F.  05  ;  Attomei/- General  v.  Alford,  4  De  G.  Mac.  &  G.  843  ; 
Penny  v.  Avison,  3  Jur.  N.  S.  62. 

If,  however,  a  trustee  or  executor  employ  the  trust  funds  in  a  trade  or 
adventure  of  his  own,  whether  he  keeps  them  separate  from,  or  mixes  them 
with,  his  own  private  moneys,  and  notwithstanding  the  difficulties  which  in 
the  latter  case  may  arise  in  taking  the  accounts,  the  cestui  que  trust,  if  he 
prefers  it,  may  insist  upon  having  the  profits  made  by,  instead  of  interest  on 
the  amount  of,  the  trust  funds  so  employed.  In  the  important  and  leading 
case  of  Doclcer  v.  Somes,  2  My.  &  K.  655,  trustees  had  paid  part  of  the  trust 
r*9'>01  ^^°^^  *°  their  bankers,  to  the  credit  of  their  general  account,  *with- 
out  distinguishing  the  same  from  the  moneys  employed  in  their  own 
business  of  ship-chandlers  and  sailmakers,  it  was  argued  that  the  trustees  only 
ought  to  be  charged  interest  for  the  trust  moneys  employed  by  them.  Lord 
Brougham,  however,  in  an  elaborate  judgment,  held  that  the  cestuis  que  trust 
might  at  their  option  charge  them  either  with  interest  or  with  a  proportionate 
share  of  the  profits.  "  Wherever,"  said  his  Lordship,  "  a  trustee,  or  one 
standing  in  the  relation  of  a  trustee,  violates  his  duty  and  deals  with  the  trust 
estate  for  his  own  behoof,  the  rule  is,  that  he  shall  account  to  the  cestui  que 
trust  for  all  the  gain  which  he  has  made.  Thus,  if  trust  money  is  laid  out  in 
buying  and  selling  land,  and  a  profit  made  by  the  transaction,  that  shall  go, 
not  to  the  trustee  who  has  so  applied  the  money,  but  to  the  cestui  que  trust 
whose  money  has  been  thus  applied.  In  like  manner  (and  cases  of  this  kind 
are  more  numerous,)  where  a  trustee  or  executor  has  used  the  fund  committed 
to  his  care  in  stock  speculations,  though  the  loss  (if  any)  must  fall  upon  himself, 
yet,  for  every  farthing  of  profit  he  may  make,  he  shall  be  accountable  to  the 
trust  estate.  So,  if  he  lay  out  the  trust  money  in  a  commercial  adventure,  as 
in  buying  or  fitting  out  a  vessel  for  a  voyage,  or  put  it  in  the  trade  of  another 
person,  from  which  he  is  to  derive  a  certain  stipulated  profit,  although  I  will 
not  say  that  this  has  been  decided,  I  hold  it  to  be  quite  clear,  that  he  must 
account  for  the  profits  received  by  the  adventure,  or  from  the  concern.  In 
all  these  cases  it  is  easy  to  tell  what  the  gains  are.  The  fund  is  kept  distinct 
from  the  trustee's  other  moneys,  and  whatever  he  gets,  he  must  account  for 
and  pay  over.  It  is  so  much  fruit,  so  much  increase,  on  the  estate  or  chattel 
of  another,  and  must  follow  the  ownership  of  the  property  and  go  to  the  pro- 
prietor. .  .  . 

'*  Such  being  the  undeniable  principle  of  equity,  such  the  rule  by  which 
breach  of  trust  is  discouraged  and  punished — discouraged  by  intercepting  its 


ROBINSON     V.     PETT.  429 


gains,  and  thus  frustrating  the  intentions  that  caused  it — punished  by  charging 
all  losses  on  the  wrong-doer,  while  no  profit  can  ever  accrue  to  him — can  the 
Court  consistently  draw  the  line,  as  the  cases  would  seem  to  draw  it,  and  ex- 
cept from  the  general  rule  those  instances  where  the  risk  of  the  malversation 
is  most  imminent — those  instances  where  the  trustee  is  most  likely  to  mis- 
appropriate, namely,  those  in  which  he  uses  the  trust  funds  in  his  own  traffic  ? 
At  first  sight  this  seems  grossly  absurd,  and  some  reflection  is  required  to 
understand  how  the  Court  could  ever,  even  in  appearance,  countenance  such 
an  anomaly.  The  reason  which  has  induced  judges  to  be  satisfied  with  allow- 
ing  interest  only,  I  take  to  have  been  this;  they  could  not  ^easily  r:j;9.^-,-i 
sever  the  profits  attributable  to  the  trust  money  from  those  belonging  L  "'^  J 
to  the  whole  capital  stock  ;  and  the  process  became  still  more  difficult  where  a 
great  proportion  of  the  gains  proceeded  from  skill  or  labor  employed  upon  the 
capital.  In  cases  of  separate  appropriation,  there  was  no  such  difficulty,  as 
where  land  or  stock  had  been  bought  and  then  sold  again  at  a  profit;  and  here, 
accordingly,  there  was  no  hesitation  in  at  once  making  the  trustee  account  for 
the  whole  gains  he  had  made.  But  where,  having  engaged  in  some  trade 
himself,  he  had  invested  the  trust  money  in  that  trade  along  with  his  own, 
there  was  so  much  difficulty  in  severing  the  profits,  which  might  be  supposed 
to  come  from  the  money  misapplied,  from  those  which  came  from  the  rest  of 
the  capital  embarked,  that  it  was  deemed  more  convenient  to  take  another 
course,  and,  instead  of  endeavoring  to  ascertain  what  profit  had  been  really 
made,  to  fix  upon  certain  rates  of  interest  as  the  supposed  measure  or  repre- 
sentative of  the  profits,  and  to  assign  that  to  the  trust  estate. 

"  This  principle  is  undoubtedly  attended  with  one  advantage — it  avoids  the 
necessity  of  an  investigation,  of  more  or  less  nicety,  in  each  individual  case, 
and  it  thus  attains  one  of  the  important  benefits  resulting  from  all  general 
rules.  But  mark  what  sacrifices  of  justice  and  of  expediency  are  made  for 
this  convenience.  All  trust  estates  receive  the  same  compensation,  whatever 
risks  they  may  have  run  during  the  period  of  their  misappropriation — all 
profit  equally,  whatever  may  be  the  real  gain  derived  by  the  trustee  from  his 
breach  of  duty ;  nor  can  any  amount  of  profit  made  be  reached  by  the  Court, 
or  even  the  most  moderate  rate  of  mercantile  profit — that  is,  the  legal  rate  of 
interest — be  exceeded,  whatever  the  actual  gains  may  have  been,  unless  by 
the  very  clumsy  and  arbitrary  method  of  allowing  rests,  in  other  words,  com- 
pound interest,  and  this  without  the  least  regard  to  the  profits  actually  realized  ; 
for,  in  the  most  remarkable  case  in  which  this  method  has  been  resorted  to, 
{RapJiael  v.  Boehm,  stated  in  11  Ves.  92,  and  1  Madd.  300,  which  indeed  is 
always  cited  to  be  doubted,  if  not  disapproved,)  the  compound  interest  was 
given  with  a  view  to  the  culpability  of  the  trustee's  conduct,  and  not  upon  any 
estimate  of  the  profits  he  had  made  by  it. 

"  But  the  principal  objection  which  I  have  to  the  rule,  is  founded  upon  its 
tendency  to  cripple  the  just  power  of  this  Court  in  by  far  the  most  wholesome 
and  indeed  necessary  exercise  of  its  functions,  and  the  encouragement  thus 
held  out  to  fraud  and  breach  of  trust.     What  avails  it  towards  preventing 


430         CO  xM  MISSIONS      OF     TRUSTEES     AND     EXECUTORS. 


such  malversations,  that  the  contrivers  of  sordid  injustice  feel  the  power  of  the 
r*oooi  Court,  only  where  they  are  clumsy  enough  to  keep  *the  gains  of  their 
L  "^""^-^  dishonesty  severed  from  the  rest  of  their  stores  ?  It  is  in  vain  they  are 
told  of  the  Court's  arm  being  long  enough  to  reach  them,  and  strong  enough 
to  hold  them,  if  they  know  that  a  certain  delicacy  of  touch  is  required,  with- 
out which  the  hand  might  as  well  be  paralysed  or  shrunk  up.  The  distinc- 
tion,— I  will  not  say  sanctioned,  but  pointed  at  by  the  negative  authority  of 
the  cases, — proclaims  to  executors  and  trustees,  that  they  have  only  to  invest 
the  trust  money  in  the  speculations,  and  expose  it  to  the  hazards  of  their  own 
commerccj  and  be  charged  £5  per  cent,  on  it,  and  then  they  may  pocket 
£15  or  £20  per  cent,  by  a  successful  adventure.  Surely  the  supposed  diffi- 
culty of  ascertaining  the  real  gain  made  by  the  misapplication,  is  as  nothing 
compared  with  the  mischiefs  likely  to  arise  from  admitting  this  rule,  or  rather 
this  exception  to  one  of  the  most  general  rules  of  equitable  jurisdiction. 

"  Even  if  cases  were  more  likely  to  occur  than  I  can  think  they  are,  of  in- 
extricable difficulties  in  pursuing  such  inquiries,  I  should  still  deem  this  the 
lesser  evil  by  far,  and  be  prepared  to  embrace  it. 

"  Mr.  Solicitor-General  put  a  case  of  a  very  plausible  aspect,  with  a  view 
of  deterring  the  Court  from  taking  the  course  which  all  principle  points  out. 
lie  feigned  the  instance  of  an  apothecary  buying  drugs  with  £100  of  trust 
money,  and  earning  £1000  a  year  by  selling  them  to  his  patients ;  and  so  he 
mio-ht  have  taken  the  case  of  trust  money  laid  out  in  purchasing  a  piece  of 
steel,  or  skein  of  silk,  and  these  being  worked  up  into  goods  of  the  finest 
fabric,  Birmingham  trinkets,  or  Brussels  lace,  where  the  work  exceeds  by 
10,000  times  the  material  in  value.  But  such  instances  in  truth  prove 
nothing ;  for  they  are  cases  not  of  profits  upon  stock,  but  of  skilful  labor  very 
highly  paid ;  and  no  reasonable  person  would  ever  dream  of  charging  a  trus- 
tee, whose  skill  thus  bestowed  had  so  enormously  augmented  the  value  of 
the  capital,  as  if  he  had  only  obtained  from  it  a  profit ;  although  the  refine- 
ments of  the  civil  law  would  certainly  bear  us  out,  even  in  charging  all  gains 
accruing  upon  those  goods,  as  in  the  nature  of  accretions  belonging  to  the  true 
owners  of  the  chattels 

"  The  last  person  who  can  be  heard  to  argue  from  the  difficulty  of  tracing 
or  apportioning  the  profits  of  the  misapplied  fund,  is  the  man  whose  breach  of 
trust  has  caused  the  misapplication,  and  created  the  difficulty. 

"  When  did  a  court  of  justice,  whether  administered  according  to  the  rules 
of  equity  or  of  law,  ever  listen  to  a  wrong  doer's  argument  to  stay  the  arm  of 
justice,  grounded  on  the  steps  he  himself  had  successfully  taken  to  prevent 
his  iniquity  from  being  traced  ?     Bather,  let  me  ask,  when  did  any  wrong 


99Q1  ^^'^^  ^^^^  y^*  possess  the  hardihood  *to  plead,  in  aid  of  his  escape  from 
justice,  the  extreme  difficulties  he  had  contrived  to  throw  in  the  way 
of  pursuit  and  detection,  saying,  '  You  had  better  not  make  the  attempt,  for 
you  find  I  have  made  the  search  very  troublesome  ?'  The  answer  is,  '  The  Court 
will  try.'  "  See  also  Palmer  v.  Mitchell,  2  My.  &  K.  672,  n, ;  Weddcrhurn  v. 
Weddcrhurn,  2  Kee.  -11;  4  My.  &  Cr.  41;  22  Beav.  84,  100,  124;  Fos- 


ROBINSON     V.      PETT.  431 

hroolce  V.  Balgity,  1  My.  &  K.  226;  Willett  v.  Bland  ford,  1  Hare,  253; 
Portlock  V.  Gardner,  lb.  603  ;  Parker  v.  Bloxan,  20  Beav.  295  ;  Cummins  v. 
Cummins,  8  Ir.  Eq.  Rep.  723. 

Should,  however  in  any  case  a  serious  difficulty  arise  in  tracing  and  appor. 
tioning  the  profits  derived  by  a  trustee  or  executor  from  the  employment  of 
trust  funds  together  with  his  own,  in  any  trade  or  speculation,  it  may  be  a 
reason  for  preferring  a  fixed  rate  of  interest  to  an  account  of  the  profits,  and  it 
seems  the  Court  would  allow  interest  at  £5  per  cent,  per  annum,  with  yearly 
rests,  that  is,  with  compound  interest,  (Jones  v.  Foxall,  15  Beav.  302;)  and 
the  same  interest  will  be  charged  by  the  Court,  if  the  trustee  or  executor  pays 
the  trust  fund  into  his  own  account  at  his  bankers',  although  he  do  not  apply 
any  portion  of  it  actually  in  his  trade  :  Williams  v.  Poicell,  15  Beav.  461, 
468;  and  see  Raske  v.  Hart,  11  Beav.  61;   Sutton  v.  Sharp,  1  Russ.  146. 

The  rule  laid  down  in  the  principal  case,  was  enforced  recently  by  Sir  John 
Stuart,  V.  C,  in  the  very  singular  case  of  Sngden  v.  Crossland,  3  Sm.  &  Gr. 
192.  There  a  trustee  in  consideration  of  £75  paid  to  him  by  the  defendant 
agreed  to  retire  from  the  trust  and  cause  the  defendant  to  be  appointed  a 
trustee  in  his  place.  The  arrangement  was  subsequently  carried  out.  His 
Honor  declared  the  deed  appointing  the  defendant  a  trustee  to  be  void,  and 
that  the  sum  of  £75  should  be  treated  as  part  of  the  trust  fund.  "  It  is  a  well- 
settled  principle,"  he  observed,  "  that  if  a  trustee  make  a  profit  of  his  trustee- 
ship, it  shall  inure  to  the  benefit  of  his  cestuis  que  trust.  Though  there  is 
some  peculiarity  in  the  case,  there  does  not  seem  to  be  any  difi"erence  in  prin- 
ciple whether  the  trustee  derived  the  profit  by  means  of  the  trust  property,  or 
from  the  office  itself." 

If,  however,  a  person  is  merely  a  constructive  trustee,  from  having  employed 
the  money  of  another  in  a  trade  or  business,  and  does  not  expressly  fill  any 
fiduciary  character,  as  that  of  trustee  or  executor,  although  he  must  account 
for  the  profits  of  the  money  he  employed,  he  will  have  an  allowance  made  to 
him  for  his  loss  of  time,  skill,  and  trouble.  Thus,  in  Brown  v.  Litton,  1  P, 
Wms.  140 ;  10  Mod.  20,  the  captain  of  a  ship,  having  800  dollars  on  board, 
which  he  intended  to  invest  in  trade,  died  on  his  voyage,  and  the 
*mate  becoming  captain,  took  the  800  dollars,  and,  investing  them  in  L  *'^  J 
trade,  made  great  improvements  thereof,  and  on  his  return  to  England  the 
executrix  of  the  first  captain  brought  a  bill  against  him  for  an  account.  The 
defendant  admitted  the  receipt  of  the  money,  and  ofi"ered  to  repay  the  same 
with  interest,  whereas  the  plaintiff  insisted  on  the  profits  produced  in  trade, 
and  the  several  investments  that  had  been  made  therewith.  Lord  Keeper 
Harcourt,  however,  considering  that  the  defendant  was  like  a  trustee,  held 
that  he  ought  clearly  to  account  for  the  profits  made  of  the  money ;  but  that 
to  recompense  him  for  his  care  in  trading  with  it,  the  Master  shovild  settle  a 
proper  salary  for  the  pains  and  trouble  he  had  been  at  in  the  management 
thereof.  And  his  Lordship  compared  it  to  the  case  of  two  joint  traders, 
where,  if  one  dies,  and  the  survivor  carries  on  the  trade  after  the  death  of  the 
partner,  the  survivor  shall  answer  for  the  gain  made  by  this  trade;  and,  that 


432   COMMISSIONS  OF  TRUSTEES  AND  EXECUTORS. 


this  being-  an  island,  all  imaginable  encouragement  ought  to  be  given  to  trade ; 
and  such  construction  was  for  the  benefit  of  him  Avho  carried  out  this  money 
with  that  intent ;  and  there  was  no  reason  that  his  death  should  so  far  injure 
his  family  and  relations,  as  to  dejprive  them  of  the  benefit  which  might  accrue 
from  it  in  the  way  of  trade.  In  Broini  v.  De  Tastet,  Jac.  284,  on  the  death 
of  one  of  the  partners  in  a  business,  the  survivor  retaining  his  capital,  and 
employing  it  in  the  trade,  was  decreed  by  Lord  Eldon  to  account  for  the  profits 
derived  from  it,  but  proper  allowances  were  to  be  made  to  him  for  his  manage- 
ment of  the  business.  And  see  Cruicsliay  v.  CoUins,  15  Yes.  218;  1  J.  & 
W.  2G7 ;  2  Russ.  325 ;  Feathcrstonhaiujh  v.  Femvick,  17  Ves.  298  ;  Cooke 
V.  CoUingridge,  Jac.  607. 

Upon  the  principle,  laid  down  in  Robertson  v.  Pctt,  a  trustee  will  not  be 
allowed  to  have  the  sporting  over  the  trust  estate,  nor  to  appoint  gamekeepers 
to  preserve  the  game  for  his  own  amusement :  see  }Vdih  v.  The  Earl  of  Shaftcs- 
hury,  7  Ves.  488,  where  Lord  Eldon  directed  an  in(|uiry,  whether  the  liberty 
of  sporting  could  be  let  for  the  benefit  of  the  cestuis  que  trust;  and  if  it  could 
not,  he  thought  the  game  would  belong  to  the  heir.  If  it  was  necessary  for 
the  preservation  of  the  game,  that  the  trustees  should  appoint  a  gamekeeper, 
he  would  not  be  prevented  from  appointing  one,  but  for  that  purpose  only  : 
for  he  could  not  under  the  will  have  an  establishment  of  pleasure  on  the  trust 
estate  :  and  see  Hutchinson  v.  Murritt,  8  Y.  &  C.  Exch.  547. 

So,  likewise,  a  person  standing  in  a  fiduciary  relation  towards  another  will 
not  be  allowed  to  benefit  by  his  trust  by  obtaining  a  renewal  of  a  lease,  (see 
Keech  v.  Sand/ord,  and  note,  ante,  vol.  1,  p.  36 ;)  or  by  purchasing  from  his 
cestui  que  *trust,  {Fox  v.  Mackreth,  ante,  vol.  1,  p.  92.)  And  the 
L  "■'  -I  principle  is  applicable  to  receivers,  {In  re  Onnshij,  1  Ball  &  B.  189;) 
and  committees  of  lunatic  estates  :  Anon.,  10  Yes.  103. 

Upon  the  same  principle,  where  the  Court  of  Madras  had  under  its  general 
jurisdiction  made  a  general  order  authorizing  the  registrar  of  the  Court  to 
institute  proceedings  in  certain  cases  on  behalf  of  infants,  and  it  appeared  that 
the  registrar  was  entitled  to  receive  fees  upon  proceedings  in  such  suits,  as  well 
as  on  commission  upon  the  amount  of  moneys  paid  into  Court,  it  was  held  by 
the  Judicial  Committee  of  Privy  Council,  that  such  general  order  was  void,  it 
being  against  public  policy  to  allow  an  ofiicer  of  the  Court  to  institute  suits, 
in  the  conduct  of  which  he  might  have  a  direct  personal  interest,  and  that  all 
orders  made  in  a  suit  instituted  by  the  registrar  in  pursuance  of  such  order 
ought  to  be  reversed.  "  Whatever,"  said  Pemberton  Leigh,  P.  C,  "  may  be 
the  propriety  of  making  provision  by  the  appointment  of  a  public  ofl&cer  for 
the  institution  of  suits  on  behalf  of  infants,  it  is  of  the  utmost  importance  that 
no  person  should  be  appointed  for  that  purpose  of  whom  even  a  suspicion  can 
exist,  that  he  may  be  biassed  by  any  personal  interest,  either  in  the  institu- 
tion of  the  suit,  or  in  the  mode  of  conducting  it."  Kcrakoose  v.  Serle,  4 
Moore,  P.  C.  C  459. 

Although  trustees  and  executors  arc  not  allowed  any  remuneration  for  their 
trouble,  they  will  be  allowed  all  proper  expenses  out  of  pocket,  whether  they 


ROBINSON     V.     PETT.  483 


be  provided  for  in  the  instrument  creating  the  trust  or  not :  Hide  v.  Hay- 
tcood,  2  Atk.  126;  Worrall  v.  Harford,  8  Yes.  8;  Daicson  Y.  Clarke,  18 
Ves.  254;  Attorney- General  v.  The  Mayor  of  Norwich,  2  My.  &  Cr.  424. 
Thus,  he  will  be  allowed  the  expense  of  travelling,  {Ex parte  Lovegrove,  3  D. 
&  C.  7G3 ;)  of  fees  for  counsel,  (Gary,  14 ;)  costs  of  a  law  suit,  {Amand  v. 
Bradhourne,  2  Ch.  Ca.  188;  Fearnsy.  Young,  10  Ves.  184;)  unless  such 
expenses  were  improper,  {Malcolm  v.  0'  Callaghan,  3  M.  &  C.  52  ;)  or  the 
litigation  was  occasioned  by  his  own  negligence :  Caffrey  v.  Darhy,  6  Ves. 
488,  497.  But  it  seems  he  will  in  no  case  be  allowed  interest  on  his  costs : 
Gordon  v.  Trail,  8  Price,  41G.  Although  a  trustee  ought  to  keep  an  account 
of  his  expenses,  his  not  having  done  so  will  not,  it  seems,  disentitle  him  to  an 
allowance :  Hetherscll  v.  Hales,  2  Ch.  Rep.  158.  And  he  will  have  a  lien  on 
the  trust  estate  for  his  expenses,  {Ex  parte  James,  1  Deac.  &  C.  272 ;)  but  it 
will  not  extend  to  the  persons  employed  by  him  in  the  affairs  of  the  trusts, 
{Worrall  Y.  Harford,  8  Ves.  8;  Lawless  v.  Shaw,  L.  &  Gr.,  t.  Sugd.,  154, 
reversed  Dom.  Proc.  5  C.  &  F.  129 ;)  and  if  the  trust  estate  no  longer  exists, 
the  trustee  may  proceed  in  equity  against  the  cestui  *que  trust  per- 
sonally :  Bahh  V.  Hyham,  2  P.  Wms.  453.  [*226] 

A  trustee  may,  however,  from  accidental  circumstances,  profit  by  his  trust, 
as  where  the  cestui  que  trust  dies  intestate  without  heirs  ;  for  in  that  case  the 
lord  cannot  claim  by  escheat,  and,  subject  to  the  right  of  creditoi's,  the  trustee 
may  retain  possession,  not  by  any  title  of  his  own,  but  because  no  other  person 
can  show  a  title.  This  was  determined  after  much  discussion  in  the  import- 
ant case  of  Burgess  v.  l]7teate,  1  Eden,  177.  There  A.,  being  seised  in  fee 
ex  parte  paterna,  conveyed  real  estate  to  trustees,  in  trust  for  herself,  her 
heirs  and  assigns,  to  the  intent  that  she  should  appoint,  and  for  no  other  use, 
intent,  or  purpose  whatsoever.  A.  died  without  having  made  any  appointment, 
and  without  heirs  ex  parte  paterna.  It  was  held  by  Lord  Keeper  Henley,  and 
Sir  Thomas  Clarke,  M.  R.,  first,  that  the  maternal  heir  was  not  entitled;  and, 
secondly,  that  there  being  a  terre  tenant,  the  Crown,  claiming  by  escheat,  had 
not  a  title  by  subpoena  to  compel  a  conveyance  from  the  trustee,  the  trust  being 
absolutely  determined ;  but  no  opinion  was  given  upon  the  right  of  the  trustee  : 
and  see  Attorney- General  y.  JSands,  Hard.  49G  :  Tudor's  L.  C.  Real  Prop.  p. 
617;  Taylor  Y.  Haygarth,  14  Sim.  8;  Davall  v.  New  River  Company,  3 
De  Gr.  &  Sm.  394;  Cox  v.  Parker,  2.'Z  Reav.  168.  Rut  a  trustee  must  con- 
vey to  trustees  according  to  the  directions  of  a  testator,  although  the  trusts  for 
which  the  conveyance  was  directed  may  have  failed  or  never  arisen  :  Onslow 
V.  Wallis,  1  Hall  &  T.  513  ;  1  Mac.  &  (i.  506. 

In  case  of  the  attainder  of  the  cestui  que  trust  for  felony,  it  seems  to  have 
been  the  opinion  of  Lord  Keeper  Henley  and  Sir  Thomas  Clarke,  M.  R.,  that 
if  he  were  pardoned  by  the  Crown,  he  might  enforce  the  trust :  see  1  Eden, 
210,  255.  Lord  Mansfield,  however,  observed,  that  he  could  find  no  clear  and 
certain  rule  to  go  by ;  and  yet  he  thought  equity  would  follow  the  law  through- 
out :  1  Eden,  236. 

VOL.  II. — 28 


434         COMMISSIONS      OF     TRUSTEES     AND     EXECUTORS. 

It  seems,  however,  doubtful  whether  the  heir  of  a  person  executed  for  felony 
could  sue  the  trustee.     See  Br.  Ab.  tit.  "  Fcff.  al.  Us."  34. 

But  it  is  clear,  that  upon  failure  of  the  heirs  of  the  cestui  que  trust,  the 
trustee  cannot  come  into  equity  as  plaintiff,  to  assert  his  right,  (see  1  Eden, 
212  ;  and  Williams  v.  Lord  Lonsdale,  3  Ves.  752 ;)  in  which  case  a  copyhold 
(duly  surrendered)  was  devised  to  A.  and  his  heirs,  in  trust  for  B.  and  his 
heirs.  Upon  the  death  of  B.  without  heirs,  it  was  held  by  Lord  Rosslyn,  that 
the  heir  of  the  trustee  had  no  equity  to  compel  the  lord  to  admit  him ;  and 
his  bill  was  dismissed,  without  costs.  "  The  only  point,"  observed  his  Lord- 
ship, "  determined  in  Burgess  v.  Wheate,  was  that  the  Crown,  *entitled 
L  "'"'  J  as  it  was  supposed  by  escheat  upon  the  death  of  the  cestui  que  trust, 
had  not  a  title  by  subpoena  in  this  Court  to  make  the  heir  of  the  trustee, 
having  merely  a  legal  estate,  convey;  that  there  was  no  equity  for  this  Court 
to  exercise  jurisdiction.  Is  not  the  converse  of  that  equally  true  ?  If  the 
lord  has  no  equity  in  that  case,  can  I  find  any  ground  of  equity  where  the 
person  having  the  legal  estate,  and  telling  me  he  has  no  beneficial  interest,  de- 
sires me  to  act  for  his  benefit  upon  the  estate  of  the  lord  ?  The  Court  con- 
siders the  mere  legal  estate  as  nothing." 

But  the  Court  of  King's  Bench  will  by  mandamus  compel  the  lord  to  admit 
the  heir  of  a  trustee,  although  he  has  a  mere  legal  title  :  The  King  v.  Coggin, 
6  East,  431;  S.  C,  2  Smith,  417;  King  v.  wlhon,  10  B.  &  C.  80. 

Lord  Mansfield  asked,  in  Burgess  v.  Wheats,  (see  1  Eden,  185,)  whether, 
in  the  event  of  the  attainder  of  the  cestui  que  trust,  the  right  would  not  result 
to  the  creator  of  the  trust;  but  no  notice  appears  to  have  been  taken  of  this 
observation,  nor  does  the  question  ever  appear  to  have  been  determined. 

If  the  cestui  que  trust  of  real  or  personal  chattels,  having  no  next  of  kin, 
dies,  cither  intestate,  (Jones  v.  Goodchild,  3  P.  Wms.  33  :  Rutherford  v. 
Maide,  4  Hagg.  213 ;  Taylor  v.  Ilaijgarth,  14  Sim.  8,)  or,  if  under  the  old 
law,  having  made  a  will,  he  appointed  an  executor,  who  either  expressly  or  by 
implication  was  excluded  from  all  beneficial  interest,  so  as  to  be  converted  into 
a  mere  trustee,  (Middleton  v.  Sjiicer,  1  Bro.  C.  C.  201 ;  Barclay  v.  Russell, 
3  Ves.  424;  Henchman  v.  Attorney-General,  3  My.  &  K.  492;  Cave  v.  Ro- 
berts, 8  Sim.  214,)  the  Crown  in  either  case,  by  virtue  of  its  prerogative,  may 
claim  the  chattels  as  bona  vacantia;  but  if  under  the  old  law  there  was  nothing 
in  the  will  to  convert  the  executor  into  a  trustee;  or  if,  since  the  passing  of 
11  Geo.  4  and  1  Will.  4,  c.  40,  it  appears  to  be  the  intention  that  he. shall  be 
the  beneficial  owner,  the  Crown  cannot  make  good  its  claim.  See  note  to 
Attorney- General  v.  Sands,  Tudor's  L.  C.  Ileal  Prop.  G29 ;  see,  also.  Dyke 
v.  Walford,  5  Moore,  P.  C  C  434 ;  Ellcock  v.  Maj^p,  3  II.  L.  Cas.  492  ;  Rus- 
sell y.  Clowes,  2  Coll.  648;  Powell  v.  Merrett,  1  Sm.  &  Giff.  381;  Cradock 
V.  Owen,  2  Sm.  &  G.  241. 

As  aliens  cannot  hold  lands  as  against  the  Crown,  it  has  been  contended,  but 
unsuccessfully,  that  trustees  to  whom  lands  were  devised  in  trust  for  an  alien, 
were  entitled  to  hold  the  lands  discharged  of  the  trust.  See  Rittson  v.  Stordy, 
3  Sm.  k  Giff.  230  ;  Barrow  v.  Wadkin,  3  Jur.  N.  S.  G79 ;  5  AV.  11.  G95.      Sir 


ROBINSON     V.     PETT. 


435 


John  Stuart,  V.  C,  held  in  the  former  case  that  the  beneficial  interest  being 
undisposed  of,  resulted  to  the  heir-at-law  of  the  testator;  while  Sir  John  llo- 
milly,  M.  II.,  in  *the  latter  case,  held  that  the  trust  ought  to  be  exe-  p.^Qgi 
cuted  for  i\^e  Crown. 

It  has  been  before  shown  that  an  alien,  although  he  cannot  hold  land,  is 
entitled  to  the  proceeds  of  lands  devised  to  trustees  to  sell  for  his  benefit.  De 
HoiirmeUn  v.  Sheldon,  1  Beav.  79  ;  4  3Iy.  &  Cr.  525;  and  see  ante,  vol.  1, 
p.  673. 


*The  subject  of  a  trustee's  com- 
pensation, is  intimately  connected 
with  that  of  his  liability.  Where  he 
is  treated  as  a  paid  agent,  and  has  un- 
dertaken the  trust  as  such,  it  would 
seem  that  his  accountability  should 
be  much  greater  than  where  his  ser- 
vices have  been  gratuitously  rendered. 
"  That  a  trustee  is  answerable  for 
negligence,  only  where  it  is  so  gross 
as  to  be  evidence  of  wilful  miscon- 
duct, is  not  to  be  disputed.  But  the 
reason  of  the  rule  shows,  that  it  is  not 
for  cases  in  which  the  trustee  is  to  re- 
ceive a  stipulated  compensation.  It  is 
said  that  a  trustee,  even  of  a  charity, 
may  not  be  charged  for  more  than  he 
has  actually  received,  except  for  very 
supine  negligence,  and  that  the  gra- 
tuitous nature  of  the  service  distin- 
guishes him  from  a  bailee  for  hire. 
.  But  the  foundation  of  the 
rule  fails  entirely,  when  the  trust  has 
been  accepted  on  terms  of  receiving 
a  stipulated  reward;"  Ex  parte  Cassel, 
3  Watts,  443.  There  would  seem, 
however,  to  be  a  medium  degree  of 
accountability,  arising  in  cases  where 
the  trust  has  been  undertaken,  not, 
indeed,  wholly  gratuitously,  nor  yet 
with  any  stipulated  reward,  but  with 
the  expectation  of  receiving  such  com- 
pensation as  comes  within  a  court's 


discretion  to  allow,  and  these  are  the 
cases  of  most  frequent  occurrence  in 
this  country,  and  whose  classification 
will  be  here  attempted. 

Although  as  a  general  principle  of 
equity,  no  rule  can  be  more  salutary, 
and  none  is  more  universally  recog- 
nized, than  that  a  trustee  shall  not 
profit  by  his  trust,  (see  the  notes  to 
Fox  V.  Mackreth,  supra,^  yet  when 
carried  to  the  extent  of  denying  a 
reasonable  compensation  for  his  ser- 
vices, it  can  scarcely  be  said  to  have, 
at  the  present  day,  any  applica- 
tion on  this  side  of  the  Atlantic. 
"  The  state  of  our  country,  and  the 
habits  of  our  people  are  so  diflferent, 
as  to  have  induced  the  legislatures  of 
nearly  all  the  states  to  introduce  pro- 
visions by  statute,  for  competent  re- 
muneration to  those  to  whom  the  law 
commits  the  care  and  charge  of  the 
estate  of  infants  and  deceased  per- 
sons, and  the  courts  make  a  reason- 
able allowance  to  receivers  appointed 
by  them,  besides  reimbursing  their 
expenses.  .  .  .  And  the  equity 
of  the  statute  is,  by  construction,  ge- 
nerally extended  to  conventional  trus- 
tees, when  the  agreement  is  silent ;" 
Boi/d  V.  Hawkins,  2  Dev.  Equity  R. 
334. 

The  rule  of  Robinson  v.  Peft,  has, 


*  The  following  note  is  from  the  pen  of  \Ym.  Henry  Rawle,  Esq. 


436      COMMISSIONS    or    trustees    and    executors. 


however,   at   an   early  day,  received 
very  cordial  approbation  in  parts  of 
this  country.     In  the  State  of  New 
York,    in    the   early    case    of    Green 
V.  Winter,  1  Johnson,   Ch.   37,  Mr. 
Chancellor  Kent  declared,  that  even 
were  he  free  from  the  weight  of  Eng- 
lish authority,  he  would  greatly  hesi- 
tate before  he  undertook  to  question 
the  wisdom  of  this  rule,  and  in  the 
subsequently  carefully  considered  case 
of  Manning  v.  3lanmng;Vo.  534,  the 
same  learned  judge  enforced  his  views 
by  a  reference  to  the  rule  of  the  civil 
law,  and  added,  "  nor  does  the  rule 
strike  me  as  so  very  unjust,  or  singu- 
lar and  extraordinary ;  for  the  accept- 
ance of  every  trust  is  voluntary  and 
confidential;   and  a  thousand   duties 
are  required  of  individuals,  in  rela- 
tion to  the  concerns  of  others,  and, 
particularly,  in  respect  to  numerous 
institutions,  partly  of  a  private,  and 
partly  of  a  public  nature,  in  which  a 
just  indemnity  is  all  that  is  expected 
and  granted.     I  should  think  it  could 
not  have  a  very  favorable  influence  on 
the  prudence  and  diligence  of  a  trus- 
tee, were  we  to  promote,  by  the  hopes 
of  reward,  a  competition,  or  even  a 
desire  for   the   possession  of  private 
trusts,  that  relate  to  the  moneyed  con- 
cerns of  the  helpless  and  infirm.     To 
allow  wages  or  commissions  for  every 
alleged  service,  how  could  we  prevent 
abuse?" 

But,  as  has  been  pertinently  re- 
marked by  Mr.  Justice  Story,  "to  say 
that  no  one  is  obliged  to  take  upon 
himself  the  duty  of  a  trustee,  is  to 
evade,  and  not  to  answer  the  objec- 
tion. The  policy  of  the  law  "ought  to 
be  such  as  to  induce  honorable  men, 
without  a  sacrifice  of  their  private 
interest,  to  accept  the  ofiicc,  and  to 


take  away  the  temptation  to  abuse  the 
trust  for  mere  selfish  purposes,  as  the 
only  indemnity  for  services  of  an  im- 
portant and  anxious  charapter ;"  Eq. 
Jurisprudence,  §  12G8,  n.  Such  seems 
to  have  been  the  view  generally  taken 
throughout  this  country;   Barney  v. 
Saunders,  16  Howard,  United  States 
Reports,  542  ;  Shirley  v.  Shattuck,  6 
Cushman,  26;  and  though  at  an  early 
period  some  of  the  states  recognized 
the  English  rule,  yet  in  them,  as  has 
been  the  case  in  New  York,  its  judi- 
cial adoption  called  forth  almost  im- 
mediate  legislative   action,   while  in 
others,  the  allowance  of  a  compensa- 
tion to  all  acting  in  a  fiduciary  capa- 
city has  either  formed  a  part  of  their 
local  common  law,  or  has  proceeded 
from  an  equitable  construction  of  some 
statute.     The  rules  upon  this  subject, 
however,  are  to  a  great  extent  so  local,  as 
to  render  unsatisfactory  any  attempt  at 
their  uniform  classification.     In  some 
parts  of  the  country,  legislative  pro- 
visions have  fixed  both  the  amount 
of  compensation,  and  the  manner  in 
which  it  shall  be  allowed,  while  in 
others  the  statutes  are  less  precise, 
being  sometimes  merely  declaratory 
of  the  general  principle.     In  the  lat- 
ter case,  however,  courts  have  endea- 
vored to  form  a  standard  with  as  much 
precision  as  the  varying  circumstances 
of  each  case  have  admitted,  and  in 
some  of  the  older  states,  the  system 
of    allowing    compensation    may   be 
said  to  be  governed  by  precise  rules, 
which  may,  perhaps,  hereafter  become 
less  local  in  their   application  than 
they  at  present  seem  to  be. 

In  New  York,  the  principle  adopt- 
ed by  Chancellor  Kent,  in  Green  v. 
Winter,  and  Manning   v.   Manning, 


ROBINSON     V.     PETT. 


437 


supra,  seems  to  huve  met  with  little 
favor,  as  these  cases  were  almost  im- 
mediately followed  by  the  Act  of  1817, 
which  made  it  lawful  for  the  Court  of 
Chancery,  in  the  settlement  of  ac- 
counts of  guardians,  executors,  and 
administrators,  to  make  to  them  a  rea- 
sonable allowance  for  their  services  as 
such,  over  and  above  their  expenses ; 
JIatter  of  Roberts,  3  Johns.  Ch.  43. 
An  order  in  chancery,  made  in  the 
same  year,  (3  Johns.  Ch.  630,)  re- 
duced these  provisions  to  some  preci- 
sion, by  directing  that  the  allowance 
for  receiving  and  paying  money  should 
be  five  per  cent,  on  all  sums  not  ex- 
ceeding one  thousand  dollars — two 
and  a-half  per  cent,  on  any  excess  be- 
tween one  and  five  thousand — and  one 
per  cent,  for  all  above  that  amount. 
The  Revised  Statutes  have  since 
adopted  the  same  rule,  (2  Rev.  St. 
93,)  with  the  addition  that  any  provi- 
sion made  by  a  testator  for  specific 
compensation  is  to  be  deemed  a  full 
satisfaction  for  his  services,  unless  by 
a  written  instrument  filed  with  the 
surrogate  he  elect  to  renounce  such 
legacy ;  and  in  1849,  it  was  further 
provided,  that  in  all  cases  such  allow- 
ance should  be  made  for  their  actual 
and  necessary  expenses,  as  should  ap- 
pear just  and  reasonable  ;  (3  Rev.  St. 
180,  ed.  of  1859.)  These  provisions 
have  been  held  to  be  retrospective, 
and  therefore  to  apply,  in  cases  of  ac- 
counts settled  since  its  passage,  to 
services  performed  before  that  time; 
Dakin  V.  Denming,  G  Paige,  95. 

Although  these  statutes  only  gave 
an  allowance  to  guardians,  executors 
and  administrators,  yet  by  an  equit- 
able construction,  their  provisions 
have  been  extended  to  committees  of 
lunatics,  idiots,  &c.;  Roberts's  case,  3 


Johns.  Ch.  43 ;  Meacham  v.  Sterns, 
9  Paige,  403  ;  Livingston's  case,  lb. 
442  ;  and  although  in  Jewett  v.  Wood- 
loard,  1  Edw.  Ch.  199,  it  seems  to 
have  been  thought  that  this  did  not 
apply  to  trustees  under  voluntary  as- 
signments, yet  in  Meacham  v.  Sterns, 
snpra,  it  was  held  to  be  the  settled 
rule,  that  the  equity  of  the  statute 
extended  also  to  trustees  under  any 
express  trust  when  the  instrument 
creating  it  was  silent,  and  that  "  the 
trustee  upon  the  settlement  of  his  ac- 
counts will  be  allowed  the  same  fixed 
compensation  for  his  services,  by  way 
of  commissions,  as  are  allowed  by  law 
to  executors  and  guardians,  to  be  com- 
puted in  the  same  manner ;''  Livings- 
ton's case;  "and  there  is  no  well 
founded  distinction  between  land  and 
stocks  as  to  the  trustee's  compensa- 
tion;" De  Peyster's  case,  4  Sandford, 
Ch.  R.  514.  "  It  seems  to  have  been 
supposed,"  said  Davies,  J.,  in  ^Yag- 
staffe  V.  Lowerre,  23  Barb.  224,  ''  that 
the  trustee  in  this  case  is  limited  to  his 
commissions  on  that  part  of  the  es- 
tate which  has  become  personal  pro- 
perty; and  this  doubtless  has  arisen 
from  assuming  such  to  be  the  intent 
of  the  statute  in  the  case  of  executors 
and  administrators.  The  statute  al- 
ludes to  personal  estate,  simply  be- 
cause that  is  all  executors  and  adminis- 
trators have  in  charge.  In  reference 
to  them,  the  statute  allows  commissions 
on  all  sums  of  money  that  they  may 
receive  and  pay  out.  But  commissions 
on  the  whole  amount  of  the  trust  es- 
tate in  their  hands,  under  their  con- 
trol, and  managed  by  them,  was  in- 
tended, and  has  been  uniformly  al- 
lowed, even  though  a  very  small  part 
was  in  money  actually  received  or  paid 
out.     If  the  estate  of  the  deceased 


438 


COMMISSIONS  OF  TRUSTEES  AND  EXECUTORS. 


consisted  of  stocks,  or  bonds  and  mort- 
gages, it  might  be  and  often  is  tbe 
case,  that  the  executor  actually  re- 
ceives and  pays  out  only  the  interest 
or  income ;  yet  he  would  be  entitled 
to  and  does  receive  his  commissions 
upon  the  whole  amount  of  the  estate. 
The  compensation  is  given  to  him  for 
his  care  and  management  of  the  estate, 
and  not  for  the  simple  act  of  receiv- 
ing and  paying  out.  And  I  am  un- 
able to  see  why  the  trustee,  in  this 
case,  should  be  restricted  to  his  com- 
missions upon  the  sums  of  money  he 
receives  and  pays  out,  and  the  per- 
sonal property  which  he  transfers. 
The  reasons  for  his  compensation  ap- 
ply, in  my  judgment,  with  greater 
force  even,  in  regard  to  real  estate  than 
personal.  The  responsibility  and  diffi- 
culty of  managing  a  trust  estate,  con- 
sisting of  stocks,  and  bonds  and  mort- 
gages, are  far  less  than  that  consisting, 
like  the  present,  of  unproductive  real 
estate,  lying  in  the  suburbs  of  a  large 
and  growing  city.  This  property  has 
been  subject  to  the  system,  prevailing 
here,  of  local  improvements,  by  open- 
ing streets  and  avenues,  regulating  and 
paving  streets,  constructing  sewers  and 
other  like  operations.  It  has  always 
been  subject  to  annual  taxation,  and 
constant  watchfulness  is  required  to 
save  property  thus  circumstanced  from 
total  loss  and  confiscation."  The  word 
"commissions"  has  been  construed  to 
include  not  merely  a  per  centage,  but 
an  allowance  for  all  services  connected 
with  the  trust ;  Stevenson  v.  jMaxwell, 
2  Sandf.  Ch.  284,  and  this  allowance 
cannot  in  any  event  exceed  that  pre- 
scribed by  the  statute,  even  akhough 
the  deed  creating  the  trust  should  ex- 
pressly provide  for  a  more  liberal  com- 
pensation; Griffin  v.  Barney,  2  Com- 


stock,  372  ;  and  in  Nlclioh  v.  M^Eioen, 
21  Barb.  6G,  this  was  carried  to  the 
extent  of  holding  that  a  clause  in  an  as- 
signment, providing  for  the  payment 
of  "  a  reasonable  counsel  fee,"  besides 
other  expenses,  costs,  charges  and 
commissions,  rendered  the  instrument 
void  as  to  creditors,  as  being  evidence 
upon  its  face  of  an  intent  to  defraud 
them ;  where,  however,  the  trust  is  ex- 
pressly undertaken  from  motives  of 
friendship  and  benevolence,  no  com- 
pensation will  be  allowed ;  Mason  v. 
Rosevelt,  5  Johns.  Ch.  534. 

In  M^  Whorter  v.  Benson,  Hopk. 
28,  it  was  held,  that  the  discretion  of 
the  court  was  limited  as  to  the  manner 
of  compensation,  and  that  it  had  no 
power  to  sanction  any  specific  charge 
or  per  diem  allowance.  Nor  was  such 
a  mode  of  compensation  deemed  at  all 
expedient.  "It  is  evident,"  said 
Sandford,  Ch.,  "that  all  attempts  to 
assess  the  value  of  services-  performed 
in  these  trusts,  by  placing  each  case 
upon  its  peculiar  circumstances  and 
intrinsic  merit,  must  terminate  in  a 
power  of  mere  discretion,  a  discretion 
to  a  great  extent  merely  arbitrary. 
This  mode  of  assessment  would  be  so 
extremely  uncertain  in  its  operation, 
that  it  would  frequently  defeat  the 
very  justice  which  it  proposes  to  at- 
tain; and  its  certain  effect  would  be, 
to  produce  extensive  litigation  in  ad- 
justing the  rewards  of  executors,  ad- 
ministrators and  guardians. 
It  has  also  been  proposed,  to  make  the 
compensation  depend  upon  time,  by 
making  an  allowance  for  each  day  em- 
ployed in  the  business  of  the  trust. 
This  would  indeed  be  a  universal  rule, 
embracing  all  services  ;  but  the  prin- 
ciple would  be  most  pernicious.  No 
rule  could  be  more  dangerous,  than 


ROBINSON     V.     PETT. 


439 


that  which  should  declare  that  every 
guardian,  executor  and  administrator, 
shall  receive  a  daily  allowance  for  time 
employed  in  his  trust.  Much  of  the 
utility  of  these  trusts  always  consists 
in  attention,  superintendence,  fideli- 
ty, and  economy;  and  cares  and  ser- 
vices like  these  cannot  be  measured 
with  any  exactness  by  days  or  months. 
The  duties  of  these  trusts  do  not,  in 
general,  require  entire  days  of  atten- 
tion, but  they  are  usually  performed, 
as  occasion  may  require,  with  little  or 
no  interruption  of  the  private  pursuits 
of  the  trustee.  The  injustice  of  al- 
lowing daily  wages,  the  temptation  to 
abuse  which  would  be  offered  by  such 
a  rule,  and  the  difficulty  of  preventing 
abuses  in  its  execution,  are  decisive 
objections  to  its  adoption.  If  we  re- 
gard the  duration  of  these  trusts,  this 
fact  affords  no  rule  of  compensation. 
One  of  these  trusts  continuing  five 
years,  may  be  far  more  arduous  and 
may  require  much  greater  services 
than  another  extending  to  fifteen 
years,  for  its  entire  execution.  The 
idea  of  compensation  measured  mere- 
ly by  time,  must  therefore  be  re- 
jected." 

The  rule  of  this  case  has  been  sub- 
sequently approved,  both  upon  prin- 
ciple, and  as  a  correct  interpretation 
of  the  statute ;  Reviser's  note  to  §  54, 
tit.  3,  ch.  6,  pi.  2;  Vanderhci/den  v. 
Vanderheyden,  2  Paige,  288  ;  Valen- 
tine V.  Valentine,  3  Barb.  Ch.  438 ; 
though  in  Jewett  v.  Woodxcard,  1 
Edw.  Ch.  199,  a  per  diem  allowance 
was  given  to  a  trustee  under  an  assign- 
ment for  the  benefit  of  creditors.  In- 
deed, notwithstanding  the  emphatic 
opinion  of  Chancellor  Kent,  in  Green 
v.  Winter,  upon  the  general  principle, 
the  rule  adopted  by  him  in  that  very 


case  made  the  distinction  between  it 
and  the  general  current  of  American 
authority  rather  one  of  kind  than  of 
principle,  as  he  gave  a  per  diem  al- 
lowance to  the  trustee,  not,  indeed, 
as  compensation,  but  by  way  of  indem- 
nity. 

Compensation  to  a  fiduciary  being 
thus  the  subject  of  positive  enactment 
in  New  York,  seems  to  be  thought  a 
matter  of  right  and  not  of  grace,  and 
is  not  forfeited  by  misconduct  on  his 
part — his  commissions  are  allowed  to 
him,  even  though  he  should  be  charged 
with  compound  interest;  Vanderhey- 
den  V.  Vanderheyden ;  Rapalje  v. 
Korsworthy' s  Ex'rs,  1  Sandford,  Ch. 
406 ;  or  have  been  guilty  of  gross 
negligence;  Meacham  v.  Sterns,  9 
Paige,  405.  And  the  same  commis- 
sions have  been  allowed  where  the 
executor,  instead  of  calling  in  the 
bonds  and  assets  of  the  estate,  trans- 
fers them  to  the  legatees  with  their 
assent;  Cairns  v.  Chauhert,  9  Paige, 
IGl ;  or  where  a  trustee  or  executor 
pays  to  himself  a  debt  out  of  the  fund ; 
JJeacham  v.  Ster7is ;  or  where,  on 
being  discharged  from  his  trust,  he 
transfers  to  his  successor  the  pro- 
perty in  the  same  state  in  which  he 
received  it  from  his  predecessor; 
De  Peyster's  case,  4  Sandford,  Ch. 
514.  So  commissions  are  allowed 
on  amounts  charged  in  the  inventory, 
but  which  the  executor  did  not  in  fact 
receive ;  Meacham  v.  Sterns,  siipra. 

But  in  order  to  save  an  estate  from 
double  commissions  by  reason  of  fre- 
quent changes  of  trustees,  the  vice- 
chancellor  held,  in  Jones's  case,  4 
Sandford,  Ch.  G16,  upon  English  au- 
thority, that  a  trustee's  petition  for 
his  discharge,  upon  no  other  cause  as- 
signed than  his  wish  to  be  relieved 


440         COMMISSIONS     OF     TRUSTEES     AND     EXECUTORS. 


from  his  duties,  would  only  be  grant- 
ed by  his  paying  the  costs  of  the  peti- 
tion and  appointment  of  his  succes- 
sor, and  by  being  allowed  no  commis- 
sions on  the  transfer  of  the  subjects 
of  the  trust. 

It  will  be  observed,  that  the  statute 
does  not  specify  how  much  is  to  be 
allowed  for  receiving,  aud  how  much 
for  paying  out  the  amounts  on  which 
commissions  are  to  be  charged ;  "  and 
it  may  sometimes  happen,"  as  was 
said  by  "Walworth,  Ch.,  in  Kelloyifs 
case,  7  Paige,  267,  "  that  upon  a  loss 
of  the  fund,  without  any  fault  of  the 
suardian  or  other  trustee,  or  upon  a 
change  of  trustees,  the  guardian  or 
trustee  may  be  entitled  to  compen- 
sation for  one  service  and  not  for  the 
other."  The  rule  in  general  was, 
therefore,  said  to  be,  "  to  allow  one- 
half  commission  for  receiving  and 
one-half  for  paying  out  the  trust  mo- 
neys." In  that  case,  the  guardian 
had  been  allowed  commissions  for  re- 
ceiving and  paying  out  the  amount  of 
a  legacy  bequeathed  to  his  ward,  al- 
though its  principal  part  had  been 
invested  by  him.  "  This  mode  of  com- 
puting the  commissions  would  be  cor- 
rect, if  the  infant  were  now  of  age, 
and  this  was  a  final  settlement  of  the 
account  of  the  guardian,  with  a  view 
to  turn  over  the  whole  fund  to  his 
ward.  .  .  .  But  it  certainly  was 
not  tlie  intention  of  the  legislature,  or 
of  this  court,  to  sanction  the  princi- 
ple of  allowing  to  the  guardian  or 
trustee  full  commissions  upon  every 
receipt  and  reinvestment  of  the  trust 
fund  committed  to  his  care  and  ar- 
rangement. The  result  of  .such  a 
principle  of  computing  the  allowance 
for  commissions,  if  the  investments 
were  made  from  year  to  year,  and  the 


accounts  rendered  annually,  would  be 
to  give  the  trustee  his  full  commis- 
sions upon  the  principal  of  the  trust 
fund  every  year,  as  well  as  upon  the 
income  received  and  expended  from 
time  to  time.     .     .     .     The  proper 
rule,   therefore,    for    computing   the 
commissions   upon    the   first   annual 
statement,  or  passing  of  the  accounts 
of  the  guardian,  receiver  or  commit- 
tee, who  is  required  to  render  or  pass 
his  account  periodically,  during  the 
continuance  of  the  trust,  is  to  allow 
him  one-half  of  the  commissions,  at 
the   rates   specified   in   the  statutes, 
upon  all  moneys  received  by  him  as 
such  trustee,  other  than  the  principal 
moneys    received    from    investments 
made  by  him  on  account  of  the  trust 
estate.     And  he  is  also  to  be  allowed 
his  half  commission  on   all   moneys 
paid  out  by  him  in  bonds  and  mort- 
gages, stocks,  or  other  proper  securi- 
ties, for  the  benefit  of  the  trust  estate 
under  his  care  and  management,  leav- 
ing the  residue  of  his  half  commis- 
sions upon  the  fundjvhich  has  come 
to  his  hands,  and  which  remains  in- 
vested or  unexpended  at  the  time  of 
rendering  or  passing  such  account  for 
future  adjustment,  when  such  funds 
shall  have  been  expended,  or  when 
the  trustee  makes  a  final  settlement  of 
his  account  upon  the  termination  of 
the  trust.    And  upon  every  other  peri- 
odical statement  of  the  account  during 
the  continuance  of  the  trust,  half  com- 
missions should  be  computed  in  the 
same  manner  upon  all  sums  received 
as  interest  or  income  of  the  estate,  or 
as   further   additions   to   the  capital 
thereof,  since  the  rendering  or  pass- 
ing of  bis  last  account,  and  half  com- 
missions upon  all  sums  expended,  ex- 
cept as  investments."     See  also  Liv- 


ROBINSON  V.   PETT. 


441 


ingstoiis  case,  9  Paige,  403.  "And 
where,"  said  Walworth,  Ch.,  in  IIo- 
sack  V.  Rogers,  lb.  4G8,  "  an  execu- 
tor or  trustee  who  has  a  large  claim 
against  the  estate,  and  is  entitled  to  a 
preference,  receives  and  applies  mo- 
neys in  part  payment  of  principal  and 
interest,  if  the  amount  so  paid  is  large, 
it  appears  to  be  equitable  that  his  com- 
missions on  the  amount  so  applied 
should  be  first  deducted,  so  as  to  give 
him  the  interest  on  the  balance  of  the 
principal  of  his  debt  from  that  time, 
after  deducting  the  commission  on 
such  partial  payment.  But  where 
that  is  done,  the  subsequent  commis- 
sions should  be  computed  in  such  a 
manner  that  the  aggregate  amount  of 
the  whole  commissions  allowed  will 
not  exceed  the  statute  allowance  upon 
all  his  receipts  and  disbursements." 

Where  the  trustees  are  more  than 
one  in  number,  the  commissions  are 
computed  upon  the  aggregate  sums 
received  and  paid  out  by  all  of  them 
collectively,  and  not  upon  the  amounts 
received  and  disbursed  by  each  indi- 
vidually :  five  per  cent,  is  thus  allow- 
ed upon  the  first  81000  of  the  whole 
estate,  &c.,  and  the  whole  commis- 
sions are  then,  if  necessary,  apportion- 
ed, either  equally,  or  in  proportion  to 
their  respective  services;  Valentine 
V.  Valentine,  3  Barb.  Ch.  438 ;  and 
one  who  has  done  nothing  is  entitled 
to  no  part  of  them ;  White  v.  Bullock, 
20  Barbour,  99 ;  double  commissions, 
however,  are  not  allowed  when  an 
executor  acts  in  the  double  capacity 
of  executor  and  trustee;  Valentine  v. 
Valentine. 

There  seems  to  be  a  liberal  disposi- 
tion to  sanction  the  payment  of  agents, 
clerks,  &.c.,  whenever  their  employ- 
ment has  been  necessary  to  the  trust ; 


M^  Whorter  v.  Benson,  Ilopk.  28 ; 
Cairns  v.  Chanhert,  9  Paige,  164. 
With  respect  to  counsel  fees,  the  sta- 
tute having  fixed  the  allowance  to  be 
made  to  advocates  and  proctors  in  sur- 
rogate's courts,  which  are  taxed  as 
costs  in  the  suit,  to  be  paid  either  by 
the  adverse  party  or  out  of  the  fund, 
it  has  been  held  that  these  cannot  be 
exceeded  by  the  surrogate  ;  Ilalsey  v. 
Van  Amrlnge,  G  Paige,  12  ;  Burtis 
V.  Dodge,  1  Barb.  Ch.  91.  Nor  can 
an  executor  be  credited  with  a  coun- 
sel fee  for  drawing  up  his  accounts  in 
proper  form  for  final  settlement ;  B^ir- 
tis  V.  Dodge;  Wilcox  v.  Smith,  26 
Barb.  330;  but  where  an  executor 
applies  to  the  court,  upon  reasonable 
grounds,  for  directions  in  relation  to 
the  disposition  of  the  estate,  the  costs 
of  such  application  will  be  allowed 
him;  flatter  of  Hoioe,  1  Paige,  214; 
Collins  V.  IIoxie,9  Id.  81;  Wilcox  v. 
Synith,  supra;  so  where  an  executor 
acting  in  good  faith,  under  the  advice 
of  counsel,  and  for  the  apparent  in- 
terest of  the  estate,  brings  a  suit  for 
the  purpose  of  protecting  the  estate 
from  loss,  the  expense  of  the  liti- 
gation will  be  allowed  him,  although 
his  attempt  was  unsuccessful;  Collins 
V.  Hoxie,  9  Paige,  37.  To  trustees, 
who  have  not  improperly  or  unneces- 
sarily litigated,  counsel  fees  are  al- 
lowed ;  Jewett  v.  Woodward,  1  Edw. 
Ch.  200;  but  not  when  the  profes- 
sional services  are  more  for  the  benefit 
of  the  trustee  than  that  of  the  estate ; 
3Ieachatn  v.  Sterns,  9  Paige,  407. 
"  The  two  rules,"  it  was  said  in  Wilcox 
V.  Smith,  26  Barbour,  331,  "har- 
monize, and  they  are  founded  on  solid 
reason.  It  is  not  often  that  executors 
or  administrators  need  the  services  of 
counsel  in  making  final  settlements  of 


442        COMMISSIONS     OF     TRUSTEES     AND     EXECUTORS. 


their  accounts  before  the  surrogate, 
if  they  have  properly  mauaged  the 
estates  in  their  hands,  and  are  diligent 
in  making  settlements ;  and  when  they 
are  negligent,  or  permit  their  accounts 
to  become  confused,  or  suffer  the  es- 
tate under  their  control  to  decrease 
unnecessarily,  they  ought  to  pay  coun- 
sel out  of  their  own  funds  for  assist- 
ing them  in  closing  up  the  trusts. 
And  the  reasons  are  too  obvious  to  be 
stated  which  uphold  the  rule  that  per- 
mits the  surrogate  to  allow  them  all 
actual  and  necessary  expenses  incur- 
red by  them,  which  appear  reasonable 
and  just,  in  bringing  and  defending 
actions  in  good  faith,  with  the  expec- 
tation of  benefiting  the  estates  under 
their  control,  and  in  managing  such 
estates  solely  for  the  benefit  of  those 
interested  in  them."  The  question 
of  costs  will  likewise  depend  upon  the 
same  principles ;  Spencer  v.  Spencer, 
11  Paige,  299  ;  and  upon  a  decree  in 
a  court  of  equity  for  costs  as  between 
solicitor  and  client,  it  would  seem 
that  reasonable  counsel  fees  paid  by 
an  executor  upon  motions  and  proceed- 
ings in  the  cause  in  which  he  has 
succeeded  are  to  be  included,  though 
a  master  is  not  authorized  to  make 
such  an  allowance  in  anticipation  of  a 
decree,  unless  so  directed  in  the  order 
of  reference ;  Hosack  v.  Rogers,  9 
Paige,  463. 

In  Pennsylvania,  the  only  statutory 
provision  on  this  subject  was  an  act 
passed  in  1713,  which  authorized  Or- 
phans' courts  to  order  the  payment 
by  executors,  of  such  reasonable  fees 
for  copies  and  "  all  other  charges, 
trouble  and  attendance  which  any 
officer  or  other  person  should  neces- 
sarily be  put  to,"  as  the  court  should 


deem  just.  But  it  was  said  by  Tilgh- 
man,  C.  J.,  in  Wilson  v.  Wilson,  3 
Binn.  560,  that  the  compensation  to 
executors  "  extends  as  far  back  as  the 
testamentary  law  can  be  traced,"  and 
it  is  settled  that  an  executor  is  not 
competent  as  a  witness  until  he  has 
released  the  contingent  compensation 
that  may  be  allowed  him ;  Anderson  v. 
Neff,  11  Serg.  &  Rawle,  218 ;  and  com- 
pensation to  trustees,  guardians,  &c., 
seems  to  have  been  sanctioned  by 
practice,  upon  an  equitable  construc- 
tion of  this  statute;  Frevost  v.  Gratz 
3  Wash.  C.  C.  R.  434 ;  Heckert's  Ajy- 
p>eal,  12  Harris,  486,  and  with  re- 
spect to  trustees  under  assignments  for 
the  benefit  of  creditors,  the  act  of  21th 
March,  1818,  provided  that  the  court 
should  allow  the  assignee  "  such  pay 
or  commission  for  his  trouble  and  ser- 
vices, as  the  court,  in  its  discretion, 
might  think  reasonable ;"  and  the  re- 
vised statute  of  14th  June,  1836, 
which  has  supplied  all  former  enact- 
ments, has  provided,  not  only  with  re- 
ference to  assignees  for  the  benefit  of 
creditors,  but  to  trustees  generally, 
''  that  it  shall  be  lawful  for  the  court, 
whenever  compensation  shall  not  have 
been  otherwise  provided,  to  allow  such 
compensation  to  assignees  and  other 
trustees,  out  of  the  efi"ects  in  their 
hands,  for  their  services  as  shall  be 
reasonable  and  just." 

But  whatever  may  be  the  settled 
general  practice  with  respect  to  com- 
pensation to  fiduciaries  in  Pennsyl- 
vania, it  must  be  borne  in  mind 
that  such  compensation  is  purely  mat- 
ter of  grace ;  Ex  parte  Cassel  and 
Spayd,  3  AVatts,  443,  and  will  be 
withheld  whenever  the  conduct  of 
the  party  merits  such  a  punishment. 
"Although  it  is   perfectly  just  and 


ROBINSON     V.     PETT. 


443 


reasonable/'  as  was  said  in  Swarts- 
walter's  Accounts,  4  Watts,  79,  "  that 
every  one  acting  under  proper  au- 
thority in  the  character  of  a  trustee, 
should  receive  a  fair  compensation  for 
his  services,  yet  it  is  of  infinite  import- 
ance to  the  public,  as  well  as  to  the 
individuals  interested  in  the  execution 
of  the  trust,  that  he  should  perform 
the  duties  of  it  with  the  most  strict 

honor  and  integrity Now 

it  is  certainly  inconsistent  with  every 
principle  of  retributive  justice,  that  a 
trustee  who  betrays  the  confidence  re- 
posed in  him,  and  attempts  to  defraud 
the  cestuis  que  trust,  by  appropriating 
the  trust  funds  to  the  discharge  of  a 
pretended  claim  of  his  own,  should 
receive  the  same  reward  that  is  due 
to  virtue  only,  and  given  as  a  remu- 
neration for  services  rendered  with  a 
view  to  advance  the  interests  of  the 
cestuis  que  trust.     On    principles  of 
policy,  as  well  as  those  of  morality 
and  justice,  in  order  to  insure  a  faith- 
ful and  honest  execution  of  the  trust 
as  far  as  practicable,  it  would  be  inex- 
pedient to  allow  to  the    trustee  who 
has  acted  dishonestly,  and  with  an  in- 
tent fraudulently  to  convert  the  trust 
funds  to  his  own  use,  the  same  com- 
pensation with  him  who  has  acted  up- 
rightly in   all   respects,    and  with  a 
single  view  to  promote  the  true  in- 
terests of  his  cestuis  que  trust.     The 
withholding  compensation  altogether 
in  the  first  case,  and  bestowing  it  only 
in  the  latter,  may  have  a  tendency  to 
deter  trustees  from  attempting  any- 
thing unfair  in  the  execution  of  the 
trust,  and  induce  them,  at  the  same 
time,  to   perform    their   duties   with 
common  honesty  at  least,  if  not  with 
all  the  skill  and  diligence  that  might 
possibly  be  applied ;"  and  to  the  same 


point  are  the  cases  of  Say  v.  Barnes, 
4    S.   &  R.    116;    Asian's    Estate,  4 
Whart.    240;    Dyott's  Estate,  2  W. 
&  S.  566;  Foumier  v.  Ingraham,  7 
Id.  31;  3r  Calian' s  Aj>peal,  7  Barr, 
59;  Drysdale's  Api^eal,  2  Harris,  537; 
BeWs  Estate,  2  Parson,  Equity,  200. 
^'  An  opinion  seems  to  prevail,"  it  was 
said   in   SteJiman's  Aj^peal,  5   Barr, 
414,  by  the  court  below,  whose  judg- 
ment was  affirmed   by  the  Supreme 
Court,  "  that  a  trustee  is  always,  and 
under  all  circumstances,  to  be  paid  a 
commission    upon    the   funds    which 
pass  through  his  hands.     ...     It 
is  time  that  it  should  be  distinctly  un- 
derstood, that  a  trustee  may  not  only 
be  made  to  pay  the  cost  of  litigation 
improperly   carried    on   for   his   own 
benefit,  but  that  he   can  receive  no 
compensation  for  his  services,  where 
he  has  shown  a  want  of  good  faith, 
and  ordinary  care  and  diligence  in  the 
execution  of  the  trust."     "  Where  an 
executor  delays  payment  for  four  or 
five  years,  without  just  cause,  he  is 
chargeable  with  interest,  and    when 
he  resists  the  claim  unjustly  for  his 
own  advantage,  he  is  not  entitled  to 
commission   upon   the  sum    thus  re- 
tained, and    is  justly  liable  for   the 
costs  of  the  citation,  and  all  proceed- 
ings thereon ;     Witman's  Appeal,   4 
Casey,  378 ;  Rayhold  v.  Rayhold,  8 
Harris,  308 ;  and  the  same  salutary 
principle  was  applied  to  the  case  of 
an  attorney  who  neglected  to  pay  over 
money  received    for  his  client   until 
sued ;  Bredin  v.  Kingland,  4  Watts, 
420. 

From  those  principles,  it  naturally 
follows,  that  although  as  a  general 
rule,  there  is  a  willingness  to  allow 
reasonable  counsel  fees  and  other  ex- 
penses necessary  for  the  proper  guid- 


4i4        COMMISSIONS     OF     TRUSTEES     AND     EXECUTORS. 


anco  of  the  trustee  and  the  direct  in- 
terest of  the  estate,  "on  the  principle 
that  a  trust  estate  must  bear  the  ex- 
pense of  its  administration,"  (^Mum- 
per's Appeal,  3  Watts  &  Serg.  443; 
Puscy  V.  Clemson,  9  Serg.  &  Rawlc, 
309;  Burr  v.  MEuen,  Baldw.  154; 
Armstrong' s  Estate,  6  Watts,  237 ; 
Scott's  Estate,  9  Watts  &  Serg.  100 ; 
Dietrich  v.  Heft,  5  Barr,  94 ;  Drys- 
dale's  Appeal,  2  Harris,  537;  Beck 
V.  Ulrich,  4  Id.  503 ;)  yet  such  is  not 
the  case,  where  the  effect  is  to  throw 
these  expenses  on  those  who  either 
have  no  interest,  or  an  adverse  interest 
in  the  course  pursued  by  the  fiduci- 
ary; Brinton's  Estate,  10  Barr,  411; 
Bell's  Estate,  2  Parson's  Eq.  200; 
liayhold  V.  Rayhold,  8  Harris,  308 ; 
Heckert's  Appeal,  12  Id.  487. 

With  respect  to  costs  incurred  by 
an  executor  in  an  issue  dcvisavit  vcl 
non,  or  in  otherwise  supporting  the 
will  of  his  testator,  it  was  held  in  the 
early  case  of  Bradford  v.  Boudinot, 
3  Wash.  C.  C.  R.  122,  that  the  exe- 
cutor in  that  case  was  not  only  autho- 
rized, but  that  it  was  his  duty,  believing 
the  will  to  be  that  of  his  testator,  to 
support  the  decision  of  the  register  in 
its  favor,  and  that  he  was  entitled  to 
the  aid  of  the  estate  to  discharge  all 
reasonable  costs  and  expenses  incurred 
on  that  account.  So,  in  the  later  case 
of  Geddis's  Appeal,  9  Watts,  284,  it 
was  said  that  an  executor,  having 
proved  the  will,  was  bound  to  support 
it  against  the  attack  of  those  who 
claimed  an  opposite  interest;  though 
the  decision  was  only  to  the  point  that 
this  must  be  deemed  his  duty,  unless 
the  devisees  and  legatees  .chose  to 
abandon  their  claims  under  it,  and 
required  him  to  yield  to  their  oppo- 
nent.    It  would  be  hard  to  make  him 


pay  out  of  his  own  pocket,  expenses 
incurred  apparently  for  the  benefit  of 
others.      In  the  previous  case,  how- 
ever,  of  Kuppcnhoffer   v.    Isaacs,    7 
Watts,  170,  it  had  been  briefly  held, 
that  the  costs  of  a  devisavit  vel  non 
must  be  borne  by  the  parties  who  liti- 
gated for   their   particular  interests; 
and  the  recent  cases  have  denied  the 
position  that  an  executor  is  bound  at 
all  events  to  support  his  testator's  will. 
"  Generally,  the   ordinary  costs   and 
expenses  incurred   by  him,"  as  was 
said  in  Mump)er's  Appeal,  3   Watts 
&  Serg.  443,  "  in  either  prosecuting 
or  defending  a  suit,  as  executor,  for 
the  benefit  of  the  estate,  are  to  be 
paid  out  of  it.     This  would  seem  to 
be  right  upon  the  general  principle 
that  a  trust  estate  must  bear  the  ex- 
pense of  its  administration.     But  sup- 
pose, in  this  case,  that  the  issue  joined 
for  the  purpose  of  proving  the  validity 
of  the  will,  had  been  decided  against 
the  executor,  can  it  be  imagined  that 
he  would  be  entitled  to  retain  out  of 
the  estate  which  had  come  into  his 
hands,  not  only  the  legal  costs  of  the 
issue  for  which  judgment  had  been 
rendered  against   him,  but   likewise 
the  S600  paid  by  him  to  counsel  for 
their  advice  and  professional  services 
given  in    order  to   sustain  the  will  ? 
As  regards  the  quantum  of  the  estate, 
it  is  a  matter  of  indifference  whether 
there  be  a  will  or  not.     Will  or  no 
will,  is  a  question  which  cannot  affect 
the   estate,   in   this   respect,  in   the 
slightest  degree ;  but  it  may  be,  and 
generally  is  a  matter  of  great  interest 
to  those  who  claim  as  legatees  or  de- 
visees under  the  writing  purporting 
to  be  a  will.  They  are  the  only  persons 
interested  in  establishing  it  as  a  will. 
While  on  the  other  hand,  the  heirs  at 


ROBINSON     V.     PETT. 


445 


law,  or  next  of  kin  to  the  deceased, 
who  are  either  excluded  by  the  writ- 
ing from  receiving  any  portion  of  the 
estate,  or  as  much  of  it  as  they  would 
be  entitled  to  in  case  of  intestacy,  are 
the  persons  principally  interested  in 
opposing   the    establishment   of    the 
writing  as  a  will.     If  the  person  ap- 
pointed by  it  as  executor,  be  named 
also  as  a  legatee  or  devisee,  then,  as 
such,  he    may  be    deeply   interested 
also  in  establishing  it  to  be  the  last 
will  of  the  deceased.     But  it  is  clear 
that  creditors  and  the  rest  of  the  world 
have  no  interest  whatever  in  the  ques- 
tion.    It  would  therefore  seem  to  be 
just,  as  well  as  equitable,  that  those 
who  have  an  immediate  and  direct  in- 
terest in  the  question,  should  be  left 
to  contest  and  bear  all  the  costs  and 
charges  attending  it.     It  ought  to  be 
left  to  them  to  employ  counsel  or  not, 
as  they  please;  and  consequently  to 
bear  the  expenses  of  doing  so.    If  left 
to  those  named  in  the  writing  as  lega- 
tees, or  devisees,  to  employ  counsel, 
when  thought  advisable,  they  can,  by 
agreement  among  themselves,  appor- 
tion the  expenses  of  it  according  to 
their  respective  interests,  which  would 
certainly  be  both  equitable  and  just. 
But  if  it  be  left  to  the  person  or  per- 
sons named  in  the  writing  as  execu- 
tors, who  have  no  other  interest  in  it, 
to  employ  and  pay  counsel  out  of  the 
estate  for  their  services  rendered  in 
establishing   the  will,  it  is  not  only 
leaving  it  to  persons  who  have  no  pri- 
vate interest  in  the  matter  to  restrain 
them  from  being  prodigal  at  the  ex- 
pense of  those  immediately  interested 
in  establishing  the  writing  as  a  will, 
but  it  will,  wherever  there  are  resi- 
duary legatees  or  devisees,  throw  the 
whole  expenses  upon  them,  if  their 


interest  should  be  sufficient  to  meet 
it;   and   if  not  more  than  sufficient, 
would  leave  them  nothing.     This,  if 
just,  would  certainly  not  seem  to  be 
equitable.     The  person  named  as  exe- 
cutor in    the  writing,  when  advised 
that  its  validity  as  a  will  is  about  to 
be  contested,  ought  to  give  notice  to 
those  who  are  named  in  it  as  legatees 
or  devisees,  so  that  they  may  employ 
counsel,  if  deemed  requisite,  or  au- 
thorize him  to  do  so  at  their  expense. 
If  they,  after  being  so  notified,  do  not 
choose  to  employ  counsel  or  authorize 
any  to  be  employed  on  their  behalf, 
they  must   abide   the   consequences, 
and  will  have  no  reason  to  complain  if 
the  writing  be    not  established  as  a 
will,  seeing  they  were  not  willing  to  . 
encounter  the  expense  with  which  the 
employment  of  counsel  would   have 
been  attended."     And   this  decision 
was,  in  the  subsequent  and  recent  case 
of  Royers'  Appeal,  1  Harris,  573,  en- 
tirely approved  and  followed.     It  is 
of  course  quite  clear,  as  was  held  in 
Dlttrkh's  Ajij^cal,  2  Watts,  332,  that 
an  admimstrator  pendente  lite  who,  of 
course,  has  nothing  to  do  in  his  official 
capacity  with  such  a  contest,  cannot 
charge  the  expenses  of  it  in  his  ac- 
count. (See  to  the  same  effect  in  Ohio, 
Andrews  v.   Atidreics,  7  Ohio  State 
Rep.  150,  supra,  p.  472.) 

So,  where  there  is  a  contest  between 
the  executor  and  the  distributees. 
''  Where  an  estate  is  so  situated,"  said 
Huston,  J.,  in  Sterrett's  Appeal,  2 
Penn.  426;  "that  legal  advice  is  pro- 
per to  direct  the  course  of  the  execu- 
tors, or  where  they  must  bring  suits  to 
recover  part  of  the  estate,  or  defend 
suits  brought  against  them,  counsel 
must  be  employed,  and  where  they  are 
employed  to  obtain  what  is  honestly 


44G        COMMISSIONS     OF     TRUSTEES     AND     EXECUTORS. 


supposed  to  be  tlie  rights  of  tlie  estate, 
the  estate  ought  to  pay  the  reasonable 
counsel  fees.  But  where  executors 
neglect  to  settle  and  pay,  and  are  sued 
by  creditors,  or  cited  by  heirs,  and 
employ  counsel  to  defend  them  in 
their  iniquity,  no  counsel  fees  should 
come  from  the  estate.  The  man  who 
is  doing  wrong,  must  himself  pay  the 
expense  of  that  wrong;"  JJiester's 
Appeal,  7  Barr,  457  ;  Sivartzwalter's 
Accounts,  4  Watts,  77 ;  Beck  v.  11- 
rick,  4  Harris,  503 ;  and  not  only  are 
no  commissions  allowed  under  such 
circumstances,  but  where  an  executor 
claimed  a  balance  due  to  himself,  and 
the  account  as  settled  by  an  auditor 
showed  a  balance  against  him,  the  exe- 
cutor was  made  to  pay  the  expenses 
of  auditing;  Sterrett's  Appeal,  2 
Penna.  R.  426;  and  in  Harlan's  Ac- 
counts, 3  Penna.  Law  Journal,  116, 
it  was  distinctly  held  that  although 
in  general  the  costs  of  an  audit  were 
to  be  paid  out  of  the  fund,  in  the  set- 
tlement of  the  accounts  of  a  fiduciary, 
if  he  had  been  guilty  of  fraud  or  mis- 
conduct, the  expense  should  be  put 
upon  him,  and  not  upon  the  estate. 

These  cases  are  distinguishable  from 
Scott's  Appeal,  9  Watts  &  Serg.  100, 
where  the  whole  estate  having  been 
devised  to  a  charity,  the  executor  was 
allowed  counsel  fees  paid  by  him  in 
opposing  proceedings  instituted  for 
the  purpose  of  escheating  the  estate, 
as  the  executor  litigated  ''  for  the  in- 
terest of  the  party  who  got  the  whole 
estate  by  the  litigation,  and  who  then 
refused  to  reimburse  him  for  his  ex- 
penses." See  the  distinction  noticed 
in  Roijers'  Appeal,  1  Harris,  573. 

In  Greenfield's  Estate,  2  Harris, 
489,  a  lady  of  large  property,  and  ad- 
vanced in  years^  executed  a  deed  of  all 


her  estate,  absolute  on  its  face,  to  four 
persons,  who,  on  the  same  day,  declar- 
ed by  deed,  that  they  held  the  estate 
in  trust  to  pay  to  each  of  themselves 
810,000 — to  pay  the  income  to  her- 
self for  life,  and  after  her  death  to 
distribute  the  principal  among  sundry 
persons.  A  bill  filed  after  her  death, 
to  set  aside  these  instruments,  on  the 
ground  of  influence,  was  dismissed 
with  costs,  on  the  ground  that  the 
proofs  not  being  sufficient  to  support 
the  charges  in  the  bill,  there  was  no- 
thing in  the  reservation  of  the  com- 
pensation so  contrary  to  equity  as  to 
invalidate  the  transaction.  But  this 
decree  was  reversed  by  the  Supreme 
Court,  who,  while  holding  the  deed 
to  be  valid,  yet  struck  out  the  provi- 
sion for  compensation ;  and  Mr.  Jus- 
tice Bell,  who  delivered  the  opinion 
of  the  court,  held  the  following  lan- 
guage :  "  Yet  this  fact  will  by  no 
means  justify  a  charge  of  actual  fraud 
against  the  parties  who  principally 
managed  this  transaction.  As  already 
intimated,  there  is  no  proof  in  the 
cause  to  warrant  so  grave  an  accusa- 
tion— especially  of  individuals  enjoy- 
ing the  eminent  reputation  which  all 
accord  to  these  trustees.  I  can  very 
well  imagine  how,  without  a  violation 
of  conscience,  they  might  conceive 
themselves  entitled  to  a  princely  re- 
muneration, under  the  circumstances 
then  surrounding  the  donor.  But  in 
spite  of  this  concession,  a  rule  of 
public  policy  and  pure  morals,  found- 
ed in  long  experience  of  the  human 
heart,  and  knowledge  of  man's  cupi- 
dity, interposes  to  forbid  an  allowance 
of  the  claim.  In  this  feature,  the  case 
presents  what  is  called  a  constructive 
fraud,  springing  from  the  confidential 
relations  existing  between  the  parties. 


ROBINSON  V.   PETT. 


447 


This  peculiarity,  withdrawing  it  from 
the  operation  of  ordinary  rules,  throws 
upon  the  beneficiaries  the  duty  of 
showing  expressly  that  the  arrange- 
ment was  fair  and  conscientious  be- 
yond the  reach  of  suspicion.  In  re- 
quiring this,  courts  of  equity  act  irre- 
spective of  any  admixture  of  deceit, 
imposition,  overreaching,  or  other  posi- 
tive fraud.  As  it  has  often  been  said, 
the  principle  stands  independently  of 
such  elements  of  active  mischief.  It 
is  founded  upon  a  motive  of  general 
policy,  and  is  designed  to  protect  a 
party,  so  far  as  may  be,  against  his 
own  overweening  confidence  and  self- 
delusion,  the  infirmities  of  a  hasty 
judgment,  and  even  the  impulses  of 
a  too  sanguine  temperament.  It  has 
been  beneficially  applied  to  those  con- 
fidences which  owe  their  birth  to  the 
relation  of  parent  and  child,  guardian 
and  ward,  trustee  and  cestui  que  trust, 
and,  above  all,  attorney  and  client. 
To  guard  against  the  strong  influences 
which  these  connections  are  so  apt  to 
originate,  the  law  not  only  watches 
over  the  transactions  of  the  parties 
with  great  and  jealous  scrutiny,  but 
it  often  declares  transactions  absolute- 
ly void,  which,  between  other  parties, 
would  be  open  to  no  exception.  .  .  . 
Looking  to  the  whole  case,  as  it  is  pre- 
sented by  both  proofs  and  pleadings, 
the  questions  may  be  asked,  was  Mrs. 
Greenfield  aware  that  by  the  terms  of 
the  declaration  her  estate  was  to  be 
burdened  with  the  paymentof  $40,000 
as  compensation  to  the  trustees  ?  Did 
she  know  that  this  sum  was  payable, 
though  each  of  the  trustees  might  de- 
cline the  burden  of  the  trust  within 
a  year  after  its  creation  ?  She  might 
have  been  acquainted  with  the  first 
provision  without  being  cognizant  of 


the  last,  for  they  are  widely  separated 
in  the  deed.  Who  shall  say  it  was 
not  so  ?  And  yet  to  sustain  them,  I 
repeat  it  must  be  clearly  established, 
she  not  only  knew  of,  but  compre- 
hended both,  thoroughly.  The  an- 
swers, at  most,  aver  that  she  suggest- 
ed the  amount  of  compensation  her- 
self; but  was  she  made  aware  of  the 
clause  under  which  it  might  be  re- 
duced to  a  mere  gift  ?  It  is  extreme- 
ly difficult  to  believe  she  understood 
and  deliberately  assented  to  this.  The 
doubt  is  sufficient  to  invalidate  the 
provision.  It  was  said  on  the  argu- 
ment, that  all  the  cases  in  which  do- 
nations and  gratuities  were  disallowed, 
are  either  cases  where  no  service  was 
rendered,  or  of  past  services,  which, 
it  is  thought,  difi"er  in  principle  from 
those  where  the  services  are  prospec- 
tive. I  am  not  aware  of  any  instance 
where  this  distinction  is  taken :  but, 
as,  in  our  case,  the  declension  of  all 
service  and  responsibility  was  optional 
with  the  trustees,  I  am  disposed  to 
regard  the  sums  dedicated  to  them 
rather  in  the  light  of  a  gift  than  as 
payment,  and  to  submit  it  to  the  rigi- 
dity of  inquisition  to  which  such  gifts 
are  always  exposed.  Under  such  a 
scrutiny  it  must  necessarily  fail.  .  .  . 
In  denying  to  the  defendants  the 
specific  sums  ascertained  by  their  de- 
claration, we  do  not  mean  to  say  they 
are  entitled  to  no  compensation  for 
their  care,  labor,  and  responsibility 
in  the  management  of  the  estate  com- 
mitted to  them.  This  we  leave  to  be 
ascertained  as  in  other  cases  of  trust, 
by  the  proper  tribunal."  Upon  sub- 
sequent settlement  of  the  accounts  of 
these  trustees,  commissions,  (of  which 
the  amount  is  not  stated  in  the  report,) 
were  allowed,  except  in  the  case  of  one 


448         COMMISSIONS     OF     TRUSTEES     AND     EXECUTORS. 


of  tliem,  wlio  liad  assumed  a  position 
hostile  to  the  trust;  S.  C  12  Harris, 
238. 

As  to  the  manner  in  which  compen- 
sation is  given,  the  court  did  not,  in 
the  case  of  HarlaiuVs  Accounts,  5 
Rawle,  330,  evince  the  same  disap- 
probation of  specific  compensation,  as 
has  been  expressed  in  Xew  York,  in 
J/'  Whorter  v.  Benson,  &c.,  supra. 
"  It  may  be  awarded,"  said  Gibson, 
C.  J.,  "in  a  gross  sum,  according  to 
a  common  practice  in  the  country, 
which  I  take  to  be  the  preferable  one, 
as  it  necessarily  leads  to  an  examina- 
tion of  the  nature,  items,  and  actual 
extent  of  the  services,  which  the 
adoption  of  a  rate  per  cent,  has  a  ten- 
dency to  leave  out  of  view  •/'  and  in 
Armsfronu's  Estate,  6  Watts,  237; 
3DFarhuuVs  Estate,  4  Barr,  149;  and 
Brinton's  Estate,  10  Id.  411,  the  al- 
lowance was  made  in  a  gross  sum. 

But  in  general,  the  practice  of  al- 
lowing compensation  by  commissions 
seems  to  prevail ;  and  with  respect  to 
their  amount,  it  may  perhaps  be  said 
that  in  by  far  the  great  majority  of 
estates  administered  cither  by  exe- 
cutors or  trustees,  five  per  cent,  is  the 
usual  commission  charged  ;  Puscy  v. 
Clemson,  9  Scrg.  &  Kawlc,  209  ;  Pen- 
neWs  Appeal,  2  Barr,  216;  Hemp- 
hill's Estate,  Parsons,  Equity  R.  31; 
Bird's  Estate,  2  Id.  171.  In  Pusei/ 
V.  Clemson,  Tilghman,  C  J.,  said, 
"  In  the  cases  which  generally  occur, 
it  appears  to  me,  after  considerable 
research,  that  the  common  opinion 
and  understanding  of  this  country, 
has  fixed  upon  five  per  cent,  as  a  rea- 
sonable allowance.  But  to  tJiis  rule 
there  must  be  exceptions.  There  are 
estates,  where  the  total  amount  is 
small,  and  that,  too,  collected  in  drib- 


lets.    In  such,  five  per  cent,  would 
be   insufiicient.       (Thus,    in    a    case 
where  the  sums  were  small,  and  had 
to  be  remitted  by  mail  to  the  party 
entitled  to  receive  them,  ten  per  cent, 
was  not  deemed  excessive;  Marstel- 
ler's  Appeal,  4  Watts,  268.)     On  the 
contrary,  there  are  others,  where  the 
total  being  very  large,  and  made  up 
of  sums  collected  and  paid  away  in 
large  masses,  five  per  cent,  would  be 
too  much.     It  must  be  left  to  the  dis- 
cretion of    the   courts,    to   ascertain 
those  cases  in  which  the  general  rule 
should  be  departed  from.     The  per- 
sonal care  and  anxiety  of  the  execu- 
tor is  a  fair  subject  of  consideration. 
An  estate  not  equal  to  the  payment 
of  its  debts,  is  always  attended  with 
hazard,  which  should  not  be  forgotten 
in  fixing  the  compensation."     In  the 
case  then  before  the  court,  however, 
the  estate  being  large,  "  the  trouble 
having    fallen    principally   upon    the 
counsel  employed  for  the  executors, 
for  whose  reward  a  very  liberal  allow- 
ance had  been  made,  and  all  the  ex- 
penses of  the  executors  having  been 
paid,  over  and  above  their  commis- 
sions," and  the  money  having  come 
into  the  hands  of   the  executors  in 
large  sums,  the  commissions  were  re- 
duced to  three  per  cent.    In  Harland's 
Accounts,  5  Rawle,  331,  rather  less 
than  five  per  cent,  for  the  manage- 
ment of  a  fund  of  $40,000  accumu- 
lated to  6100,000,  in  twenty  years, 
was  claimed,  which  the  court  said, 
gave  a  sum  to  which  objection  could 
not  be  taken  on  either  side,  and  this 
to  compensate  not  only  for  labor  ex- 
pended,  but   for    responsibility   and 
expenses  incurred  in   litigation ;    in 
M'FarhnuVs  Estate,  4  Barr,  140,  the 
allowance  was  about  the  same,  though 


ROBINSON     V.     PETT. 


449 


on  a  much  less  estate,  and  the  pay- 
ment by  administrators  of  SIOOO,  and 
one-third  of  an  apparently  desperate 
claim  at  Washington  as  a  contingent 
fee  to  agents,  was  sanctioned  under 
the  circumstances.  So  in  Bird's  Es- 
tate, 2  Parsons'  Eq.  Rep.  171,  where 
the  executor  had  charged  five  per 
cent,  on  an  estate  amounting  to  over 
$100,000,  and  it  appeared  from  the 
report  of  the  auditor,  as  well  as  from 
the  will,  that  there  were  important 
trusts  devolving  upon  the  executor — 
some  difficult  and  complicated — that 
he  had  been  intimately  acquainted 
with  the  alFairs  of  the  estate  in  the 
lifetime  of  the  deceased,  and  had  now 
only  charged  the  usual  commission, 
the  claim  was  allowed. 

In  Stephenson's  Estate,  4  Wharton, 
104,  a  very  precise  basis  was  attempt- 
ed to  be  fixed  by  the  court,  with  re- 
spect to  executors,  who,  of  course, 
charge  their  commissions  on  the  whole 
amount  of  the  estate.  "  The  respon- 
sibility which  is  incurred  by  the  re- 
ceipt and  disbursement  of  money,  is 
a  legitimate  subject  of  compensation, 
and  an  unvarying  rate  per  cent.,  with- 
out regard  to  the  magnitude  of  the 
sum,  will  always  be  a  just  measure  of 
it,  because  the  responsibility  increases 
in  proportion  to  the  amount.  It  is, 
consequently,  susceptible  of  a  uniform 
measure,  which  we  think  may  be  rea- 
sonably put  at  two  and  a-half  per  cent. 
Not  so  the  compensation  of  trouble. 
The  settlement  of  a  very  large  estate 
may  be  the  business  of  a  few  days, 
while  that  of  a  very  small  one  may 
occupy  as  many  years ;  and  the  com- 
pensation for  all  beyond  the  responsi- 
bility, ought  to  be  graduated  to  the 
circumstances."  In  that  case,  a  com- 
mission of  five  per  cent.,  charged  by 

VOL.  II. — 29 


the  executors  of  an  estate  of  $350,000, 
was  reduced  to  three, ''  the  bulk  of  the 
property  being  readily  convertible  into 
cash,  and  but  little  of  it  outstanding." 
So  in  Walker' s  Estate,  9  Sergeant  & 
Rawle,  225,  where  the  estate  consisted 
principally  of  bank  stock,  which  was 
transferred  by  the  executors  to  the 
legatees,  so  that  the  executors  did  not 
collect  the  proceeds  and  pay  it  over, 
three  per  cent,  was  said  to  be  a  very 
ample  allowance.  The  same  rule  was 
adopted  on  the  authority  of  these  cases, 
in  Miller's  Estate,  1  Ashmead,  335. 
So  in  Nathans  v.  Morris,  4  Wharton, 
389,  the  commissions  of  trustees  were 
fixed  at  three  per  cent,  upon  the  pro- 
ceeds of  sale,  (about  $7500,)  of  cer- 
tain ground  rents,  held  by  them  in 
pursuance  of  directions  in  their  tes- 
tator's will ;  and  where,  in  the  case 
of  an  assignment  for  the  benefit  of 
creditors,  the  assignees  sold  the  real 
estate  for  $44,000,  of  which  they  re- 
ceived but  §13,000,  the  remainder 
being,  in  pursuance  of  an  agreement, 
credited  as  payments  to  certain  lien 
creditors,  the  commissions  were  fixed 
at  five  per  cent,  on  the  personal  es- 
tate, and  three  per  cent,  on  the  gross 
proceeds  of  the  real  estate ;  Skunk's 
Appeal,  2  Barr,  307. 

But  where,  in  Guien's  Estate,  1 
Ashmead,  317,  a  testator  gave  to  his 
executors  two  per  cent,  on  the  "  net 
proceeds"  of  his  estate,  which  was 
supposed  to  be  solvent,  but  turned 
out  otherwise,  the  commissions  were 
raised  to  four  per  cent.  '^  An  allow- 
ance made  to  the  executors  of  a  sol- 
vent estate,"  said  King,  Pres.  J.,  "  in 
the  adjusting  of  which  little  difficulty 
or  responsibility  could  arise,  would  be 
manifestly  inadequate  to  the  labor  and 
responsibility  of  collecting  the  scat- 


450 


COMMISSIONS     TO     TRUSTEES     AND     EXECUTORS. 


terecl  funds,  settling  the  complicated 
transactions,  and  distributing  the  pro- 
portions of  the  estate  of  an  insolvent 
merchant,  in  large  business.  It  may 
be  said,  that  the  executors  accepted 
this  trust  with  the  compensation  fixed, 
and  are  bound  by  the  acceptance. 
The  answer  to  this  is,  that  if  they  did 
so,  it  was  with  reference  to  the  state 
of  things  presented  by  the  will,  the 
settlement  of  a  solvent  estate,  not  the 
collection  and  distribution  of  the  scat- 
tered assets  of  a  bankrupt  estate.  .  . 
To  show  the  effect  produced  by  the 
insolvent  condition  of  this  estate,  let 
us  suppose  the  testator  had  fixed  fif- 
teen per  cent,  as  the  amount  of  com- 
pensation to  be  taken  by  the  execu- 
tors. This  direction  would  be  cer- 
tainly disregarded,  and  the  executors 
allowed  no  more  than  a  just  compen- 
sation for  their  labor.  The  best  light 
in  which  such  a  direction  could  be 
viewed,  would  be  as  a  legacy  to  the 
executors,  and  as  such  it  must  await 
the  satisfaction  of  the  debts  of  the 
decedents ;  Fretwell  v.  Stact/,  2  Ver- 
non, 434.  Otherwise,  fixing  an  ex- 
travagant compensation  to  executors, 
would  be  an  ingenious  mode  by  which 
an  insolvent  could  make  valuable  be- 
quests. (See  Griffin  v.  Barney,  2  Com- 
stock,  372;  s«jpra,  p.  438.)  It  is  a  bad 
rule  that  will  not  work  both  ways; 
and  if  the  insolvency  of  the  estate 
would  defeat  a  liberal  allowance  for 
care  and  trouble  given  by  the  testator 
to  the  executor,  it  must  leave  the  exe- 
cutor free  to  claim  a  sum  beyond  that 
fixed  in  the  will,  where  the  justice  of 
the  case  demands  that  he  should  have 
it.  "Where  an  estate  is  insolvent,  all 
the  dispositions  of  the  will  arc  super- 
seded, and  the  liabilities  and  rights  of 


the  creditors  and  their  trustees,  the 
executors,  are  to  be  ascertained  by  the 
general  rules  of  law."  These  princi- 
ples are  so  clearly  explained,  as  to  be 
of  universal  application.  So  in  Hech- 
ert's  Appeal,  12  Harris,  482,  an  as- 
signment had  been  made  for  the  bene- 
fit of  creditors,  of  an  estate  which  was 
large  and  complicated,  and  of  which 
the  trust  lasted  for  thirteen  years, 
during  which  the  assignee  resisted 
the  solicitations  of  his  assignor  to  sell 
the  real  estate  when  a  much  less  price 
would  probably  have  been  obtained 
than  was  finally  got,  the  final  sale, 
for  over  $116,000,  raised  the  estate 
from  insolvency  and  left  a  surplus  for 
the  assignor ;  and  the  Supreme  Court, 
affirming  the  decision  of  the  court  be- 
low, confirmed  the  report  of  auditors 
who  had  allowed  the  accountant  a 
yearly  sum  paid  to  an  agent  to  look 
after  the  lands,  his  commissions, 
amounting  to  over  $0000,  and  his 
counsel  fees,  over  $2500.  "The  law 
has  fixed  no  rule,"  said  Woodward, 
J.,  who  delivered  the  opinion  of  the 
court,  "for  measuring  the  rate  of  com- 
pensation, and  it  is  obvious,  from  the 
infinitely  diversified  circumstances  at- 
tending trusts,  that  no  inflexible  rule 
can  ever  be  prescribed.  The  amount 
of  compensation  must  depend  on  the 
discretion,  which  is  nothing  else  than 
the  reason  and  conscience  of  the  tri- 
bunals having  jurisdiction  of  the  trust. 
In  the  admeasurement  of  it,  regard  is 
to  be  had  to  the  amount  and  character 
of  the  estate,  and  to  the  labor,  skill, 
and  success  attending  the  administra- 
tion of  it.  The  auditors  seem  to  have 
assessed  this  assignee's  compensation 
with  intelligent  reference  to  these 
ruling  points.     We  have  considered 


ROBINSON     V.      PETT. 


451 


all  that  has  been  urged  against  their 
conclusions,  without  perceiving  any 
ground  for  reversing  them." 

With  respect  to  commissions  on  re- 
investments by  trustees,  it  was  said 
by  King,  Prest.  J.,  in  Barton's  Estate, 
Parsons'  Eq.  29,  ''if  too  freely  given, 
they  afford,  in  a  trustee  with  large 
discretion,  great  temptations  to  repeat- 
ed changes  of  the  securities  of  the 

fund Two  and  a-half  per  cent. 

on  such  re-investments,  is  greatly  too 
large  a  commission.  Purchases  of  city 
and  county  stocks  are  made  through 
brokers,  who  for  one-quarter  of  one 
per  cent.,  make  the  purchases,  obtain 
the  transfers,  and  pay  over  the  price 
to  the  vendor.  Now  to  allow  a  trustee 
two  and  a-half  per  cent,  on  such  re- 
investments, in  addition  to  the  usual 
brokerage,  is  too  severe  a  tax  on  the 
trust  fund.  If  called  upon  to  fix  a 
standard  of  compensation  to  a  trustee, 
for  investments  so  simple  and  free  from 
care  or  responsibility,  I  would  say  one 
per  cent,  came  nearer  accuracy  than 
two  and  a-half."  The  same  able  judge, 
in  the  subsequent  case  of  the  Trustees 
of  Maria  HemphiU,  Parsons'  Eq.  R. 
31,  laid  down  the  following  principle. 
"  As  a  general  rule,  commissions  on 
the  principal  sum  coming  into  the 
hands  of  a  trustee,  and  on  the  re-in- 
vestment thereof,  will  not  be  allowed  ; 
particularly  when  the  usual  commis- 
sion of  five  per  cent,  has  been  charged 
on  the  interests  and  profits  derived 
from  such  investments.  Commissions 
and  brokerage,  and  all  other  usual 
expenses  paid  by  them  are  properly 
chargeable  to  the  estate.  But  where 
the  investments  and  re-investments 
are  made  without  any  extraordinary 
labor  or  trouble,  the  commission  of 
five  per  centum  charged  on  the  annual 


receipts  of  income  is  an  adequate  com- 
pensation for  the  trustee's  care  and 
trouble,  as  well  for  making  such  re- 
investments as  for  receiving  their 
income.  There  may  arise  cases  in 
which,  from  their  specialties,  this  gen- 
eral rule  should  not  be  applied;  but 
these  must  always  be  regarded  as  ex- 
ceptions," and  upon  appeal,  this  de- 
cision was  affirmed  by  the  Supreme 
Court;  HempMWs  Appeal,  G  Harris, 
303. 

Interest  on  commissions  seems  not 
to  be  allowed;  Armstrong's  Estate, 
6  Watts,  286 ;  nor  in  charging  an 
accountant  with  interest,  are  bis  com- 
missions to  be  included  and  interest 
calculated  upon  them;  Callayhan 
V.  Hall,  1  Sergeant  &  Rawle,  241 ; 
and  on  the  other  hand,  where  the  es- 
tate has  been  increased  by  a  charge  of 
interest,  the  trustee,  if  allowed  to 
claim  commissions  in  that  case,  is  not 
entitled  to  charge  them  upon  the  in- 
crease ;  Sai/  V.  Barnes,  4  Serg.  & 
Rawle,  116. 

It  is  well  settled,  that  one  who  is 
both  executor  and  trustee,  is  not  en- 
titled to  double  commissions  at  the 
same  time,  and  that  the  number  of 
executors  or  trustees  makes  no  differ- 
ence in  their  allowance;  Aston' s  Es- 
tate, 4  Wharton,  241 ;  Stevenson's 
Estate,  Parsons'  Eq.  R.  19. 

In  case  of  questions  arising  between 
co-executors  or  trustees  as  to  their  re- 
spective shares  of  compensation,  it 
was  held  in  Sfecenson's  Estate,  to  be 
the  proper  course  to  prefer  the  charge 
as  an  entire  claim.  "We  do  not  say," 
said  King,  P.  J.,  "  that  this  court 
would  not,  under  appropriate  proceed- 
ings, settle  such  a  question  among 
executors  or  other  trustees.  All  that 
is  meant  to  be  said  is,  that  under  a 


452 


COMMISSIONS     TO     TRUSTEES     AND     EXECUTORS. 


general  reference  to  auditors  to  settle 
an  administration  account,  such  audi- 
tors possess  no  authority  to  apportion 
commissions  among  joint  account- 
ants," but  simply  to  decide  what  ag- 
gresrate  sum  should  be  allowed  as  a 
whole. 

In  the  recent  case  of  SnUulaij  y. 
Bisset,  2  Jones,  347,  in  which  an  ac- 
tion was  brought  against  an  executor, 
by  the  widow,  for  arrears  of  interest  due 
upon  a  fund  set  apart  by  the  testator 
for  her  support,  he  claimed  to  set  off 
commissions  upon  the  amounts  due 
her,  but  the  court  instructed  the  jury, 
that  ''a  fund  like  this  is  the  'annui- 
tant's bread,'  and  to  carve  commis- 
sions out  of  it,  would,  in  many  cases, 
reduce  her  to  discomfort  and  suffer- 
ing. Her  allowance  is  not  always 
liberal,  even  where  the  estate,  from 
which  it  is  made,  is  large,  especially 
where  the  children  are  numerous. 
Where  the  executor  is  to  pay  it,  as  in 
this  case,  he  knows  what  he  under- 
takes at  the  probate  of  the  will,  and 
what  compensation  he  may  expect, 
when  he  asks  such  probate.  He  gets 
full  commissions  for  executing  the 
will,  and  the  testator  does  not  contem- 
plate giving  him  more,  out  of  the  al- 
lowance made  to  his  widow.  The 
English  rule  is,  not  to  compensate  for 
such  services;  and  though  we  give 
compensation  to  tru.stees,  as  a  general 
thing,  no  reason  is  perceived  arising 
out  of  our  American  condition,  for  in- 
troducing one  opposite  to  it.  There, 
the  trustee  of  such  a  fund,  is  held  in 
the  light  of  a  friend,  exercising  one 
of  those  friendly  offices,  without  re- 
muneration, which  are  incidental  to 
social  life;  and  a  more  morceiiary  tem- 
per in  our  people  than  in  tlic  iiintlicr 
country  can  scarcely  be  affirmed.  There 


can,  therefore,  be  no  greater  difficulty 
here  than  there,  in  procuring  trustees 
to  manage  such  funds  for  annuitants, 
especially  where  they  are  appointed 
by  the  will,  and  entitle  themselves  to 
commissions  on  the  estate,  by  accept- 
ing the  office  of  executor."  The  jury 
were,  therefore,  instructed  that  under 
the  evidence  ia  the  case,  the  de- 
fendant was  not  entitled  to  such  com- 
missions, and  this  instruction  was 
affirmed  on  error.  But  it  may  be  ob- 
served of  this  case,  that  it  was  not 
that  of  an  ordinary  settlement  of  ac- 
counts, but  the  charge  of  commissions 
was  set  up,  together  with  other  mat- 
ters of  set-off,  as  a  defence,  at  law,  to 
payment  of  admitted  arrears  of  income, 
and  therefore  received  less  favor  than 
it  would  otherwise  probably  have 
been  entitled  to.  And  in  the  subse- 
quent case  of  Spangler's  Appeal,  9 
Harris,  33,  in  which  the  provision  for 
the  widow  was  almost  exactly  similar, 
the  Supreme  Court  allowed  the  exe- 
cutor his  commissions  on  that  fund; 
and  in  referring  to  the  decision  in 
SoUiday  v.  Bissef,  which  had  been 
cited  and  relied  on  in  the  argument, 
said,  "  it  must  have  been  by  some 
oversight  that  this  court,  on  that  oc- 
casion, adopted  the  views  of  the  court 
below.  It  surely  was  not  intended  to 
say  that  charity,  in  a  trustee,  is  mat- 
ter of  legal  duty,  or  that  either  an 
executor  or  trustee  is  bound  to  admin- 
ister the  funds  committed  to  him 
without  compensation.  It  is  more 
probable  that  the  court  meant  to  say 
no  more  than  that  a  legacy  of  the  an- 
nual income  of  a  certain  fund,  is  in- 
tended to  be  certain,  like  a  definite 
legacy,  and  not  chargeable  with  the 
expense  of  administering  the  fund. 
It  may  be,  also,  that  there  was  some- 


ROBINSON     V.      PETT. 


453 


thing  special  in  the  form  of  the  be- 
quest  There  is  no  shadow  of 

reason  for  saying  that  an  executor, 
acting  as  trustee  after  the  general  es- 
tate has  been  settled,  is  entitled  to  no 
compensation  for  investing  and  man- 
aging the  trust  funds  remaining  in  his 
hands,  in  carrying  into  efiect  the 
trusts  of  the  will.  All  trustees  are 
entitled  to  a  reasonable  compensation 
for  their  services  as  they  are  rendered, 
and,  unless  a  contrary  intention  ap- 
pear, the  compensation  must  come  out 
of  the  income  of  the  fund  with  which 
they  are  entrusted." 

In  the  revised  statutes  of  Maine, 
the  sixteenth  section  of  the  fee  bill, 
(Rev.  St.  1857,  tit.  x.,  ch.  116,  Rev. 
St.  p.  649,  taken  in  substance  from 
the  prior  Act  of  16th  March,  1830, 
and  the  Revised  Statutes  of  1840,) 
allows  to  executors,  administrators, 
guardians,  and  trustees,  one  dollar  for 
ten  miles  travel  to  and  from  the  court, 
and  the  same  for  each  day's  attend- 
ance, "and  a  commission,  at  the  dis- 
cretion of  the  judge  of  probate,  whe- 
ther the  account  shall  be  settled  at 
one  or  more  times,  not  exceeding  five 
per  cent,  on  the  amount  of  personal 
assets  that  may  come  to  their  hands, 
having  regard  to  the  nature,  liability, 
and  difficulty  attending  their  respec- 
tive trusts.  In  cases  where  legal 
counsel  is  necessary,  a  reasonable  sum 
for  professional  aid  shall  be  allowed  at 
the  discretion  of  the  judge." 

In  New  Hampshire,  there  appears 
to  be  no  specific  statutory  provision  on 
the  subject  of  the  compensation  of 
executors;  the  compiled  statutes  of 
1853,  merely  declaring  in  the  language 
of  the  prior  revised  statutes,  that  the 


estates  of  every  person  deceased,  shall 
be  chargeable  with  the  just  expenses  of 
the  administration  thereof,  (Compiled 
Stat.  p.  407,)  and  these  appear  to  be 
commissions,  the  expense  of  attending 
probate  court,  and  a  per  diem  allow- 
ance thereat;  Tuttle  v.  Rohinson,  33 
New  Hamp.  118  ;  Wendell  v.  French, 
19  Id.  210  ;  "  and  if  the  executor  has, 
moreover,  performed  the  duty  of  a 
counsellor  at-law,  it  would  ill  accord 
with  the  purposes  of  justice,  and 
would  not  be  promotive  of  the  best 
interest  of  parties  even,  to  hold  that  for 
such  services  rendered  and  duties  per- 
formed, he  is  not  entitled  to  receive  an 
adequate  compensation,  commensurate 
with  their  real  value  and  importance ;" 
^VendeU  v.  French.  In  the  early  case 
of  Gordon  v.  West,  8  New  Hampshire, 
444,  the  court  disallowed  commissions 
on  the  value  of  specific  articles  given 
over,  or  retained  by  the  executor,  in 
pursuance  of  the  will.  "  Here,  there 
is  no  ground  for  a  charge  of  commis- 
sions, which  are  sometimes  a  proper 
charge  for  the  risk  and  trouble  of  re- 
ceiving, holding,  and  paying  over 
moneys."  He  was,  however,  allowed 
two  and  a  half  per  cent,  commission 
on  the  principal  of  the  moneys  actu- 
ally collected,  the  duties  of  a  trustee 
being  superadded  to  those  of  an  exe- 
cutor; and  something  like  a  rule  seems 
to  have  been  intended  to  be  laid  down 
for  future  cases  :  "  We  are  further  of 
opinion,"  said  Parker,  J.,  "that  in 
ordinary  cases  of  a  trust,  five  per  cent, 
annually  is  as  great  an  interest  as 
should  be  exacted  of  a  trustee ;  or  in 
other  words,  when  the  trustee  accounts 
for  six  per  cent,  annually,  one  per 
cent,  is  a  proper  compensation  to  be 
allowed  for  the  care  and  custody  of 
the  funds,  and  for  collecting  the  in- 


454        COMMISSIONS     TO     TRUSTEES     AND     EXECUTORS. 


come."  This  one  per  cent,  woixld 
seem  to  be  one  per  cent,  on  the  prin- 
cipal, a  much  larger  allowance  than 
that  in  other  states,  being  over  fifteen 
per  cent,  on  the  income.  In  Wendell 
V.  French,  supra,  two  and  a  half  per 
cent,  had  been  allowed  an  executor 
for  collecting  and  disbursing  the 
money  of  the  estate;  but  it  being  in 
evidence  that  the  money  was  at 
ready  command,  and  the  persons  to 
whom  it  was  to  be  paid  few  in  num- 
ber, and  easily  ascertained,  and  the 
responsibility  and  danger  of  mistake 
slight,  the  court  above  reduced  the 
commission  to  two  per  cent.,  though 
other  charges,  as  for  writing  letters,  &e., 
were  allowed. 

In  Vermont,  it  has  been  said,  in  the 
recent  case  of  Iluhhard  v.  Fisher,  25 
Vermont,  542,  that  the  English  rule 
as  to  the  compensation  of  trustees 
"  has  never  obtained  in  that  state ;" 
and  the  revised  statutes  of  1850  al- 
low to  executors  and  administrators 
all  necessary  expenses  in  the  care,  man- 
agement and  settlement  of  the  estate, 
and  for  their  services  such  fees  as  the 
law  provides,  together  with  all  extra 
expenses ;  there  is,  also,  a  similar  provi- 
sion to  that  in  New  York,  as  to  renun- 
ciation of  any  compensation  allowed 
by  the  will ;  K.  S.  Ch.  53,  §  12.  The 
same  provision  was  contained  in  the 
Revised  Statutes  of  1889.  From  the 
case  of  Ecarts  v.  Mason,  11  Vermont, 
122,  it  would  seem  that  a  very  libe- 
ral provision  was  customary  in  that 
state,  for  travelling  expenses,  loss  of 
time  while  absent,  counsel  fees,  &c., 
though  a  gross  charge  of  S30Q  for  ser- 
vices in  that  case,  in  addition  to  all 
these  expenses,  was  reduced  one-half; 
and  in  Toivle  v.  Mack,  2  Verm.  19,  it 


was  held,  that  although  a  trustee  should 
be  allowed  the  expense  of  litigation 
carried  on  in  good  faith  for  the  trust, 
yet  that  after  he  had  been  called  upon 
to  surrender  it  to  the  cestui  que  trust, 
he  could  not  be  allowed  the  cost  of 
defending  his  position  in  refusing  to 
do  so.  Apart  from  this,  an  executor 
is,  however,  as  a  general  rule,  ''  al- 
lowed his  expenditures  in  a  law  suit 
in  which  he  fails,  where  he  acts  in 
good  faith,  and  with  reasonable  pru- 
dence;" ^Yood  V.  Fames  Creditors, 
4  Verm.  35G;  Holmes  v.  Holmes,  2 
"Williams,  765.  As  to  forfeiture  of 
compensation  by  unfaithful  adminis- 
tration, see  the  case  of  Hajjgood  v. 
Jennison,  2  Verm.  302,  referred  to  in 
the  next  section  of  this  note. 

Although,  in  Massachusetts,  the 
compensation  to  executors  is  now  re- 
gulated by  statute,  yet  the  principle 
was  recognized  in  that  commonwealth 
at  an  early  day,  and  applied  to  all 
acting  in  a  fiduciary  capacity.  It  was 
said  in  Barrett  v.  Jot/,  16  Mass.  229, 
"  executors  are  allowed  a  reasonable 
compensation,  and  there  is  no  reason 
why  trustees  should  not  be,  and  it  will 
probably  be  for  the  advantage  of  all 
who  are  concerned  in  estates  held  in 
trust,  that  such  compensation  should 
be  made.  We  know  of  no  better  rule 
to  guide  our  discretion  in  this  parti- 
cular, than  the  usage  which  exists 
among  merchants,  factors,  and  others, 
who  undertake  to  manage  the  interests 
and  concerns  of  others,"  and  five  per 
cent,  upon  the  gross  amount  of  the 
property  which  had  come  into  the 
bauds  of  the  trustee  was  allowed  to 
him  in  that  case.  In  Denny  v,  Allen, 
1  Pick.  147;  Lovgley  v.  Hall,  11  Id. 
124 ;   Ellis  V.  Eilis,  12  Id.  183,  and 


ROBINSON     V.      PETT. 


455 


Jenkins  v.  Eldridge,  3  Story,  225, 
the  general  principle  was  recognized, 
and  in  Gibson  v.  Creliore,  5  Pick. 
161,  extended  to  a  mortgagee  in  pos- 
session, to  whom  five  per  cent,  was 
allowed  for  his  trouble  in  collecting 
the  rents,  but  in  ScuJder  v.  Crocker, 

1  Gushing,  382,  a  commission  of  five 
per  cent.,  amounting  to  nearly  ^7000, 
on  sales  of  property  made  by  trustees 
under  an  assignment  for  the  benefit  of 
creditors,  was  reduced  to  $5000. 

In  Jennison  v.  Hapgood,  10  Pick. 
77,  it  was  urged  that  the  executor 
had,  by  unfaithful  administration, 
forfeited  all  claim  to  compensation. 
Without  directly  deciding  this  ques- 
tion, the  court  held,  that  "  this  con- 
sideration ought  not  to  be  blended 
with  the  claim  for  compensation,  so 
far  as  the  services  of  the  appellee  have 
been  beneficial  to  the  heirs;"  and  the 
same  view  seems  to  have  been  taken 
by  the  Supreme  Court  of  Vermont,  in 
the  same  case;  Uapgood  v.  Jennison, 

2  Verm.  302.  As  to  the  manner  of  al- 
lowing compensation,  though  the  prac- 
tice seems  to  have  been  to  allow  it  in 
the  shape  of  commissions,  yet  it  was 
held  in  Rathhurn  v.  Colton,  15  Pick. 
471,  that  there  was  no  objection  in  prin- 
ciple, or  in  the  practice  of  the  court,  to 
allow  commissions  in  connection  with 
specific  charges  for  services,  provided 
the  whole  did  not  exceed  a  just  com- 
pensation, in  which  case  the  commis- 
sions were  to  be  considered  in  lieu  of 
all  remaining  services  not  specifically 
charged. 

But  the  Revised  Statutes  of  Massa- 
chusetts of  1835,  p.  436,  introduced 
the  same  rule  as  to  executors  and  ad- 
ministrators, as  that  established  by 
those  of  New  York,  allowing  commis- 
sions, at   the   same   rates,  upon  the 


amount  of  the  personal  estate  collected 
and  accounted  for  by  them,  and  of 
the  proceeds  of  real  estate  sold  under 
order  of  court  for  the  payment  of 
debts,  which  they  declared  should  be 
received  in  full  compensation  of  all 
ordinary  services.  There  is  the  same 
provision  for  electing  to  renounce  a 
specific  compensation  fixed  by  the 
testator. 

The  distinction  between  the  duties 
of  an  executor  and  a  trustee,  in  refer- 
ence to  the  subject  of  compensation, 
was  thus  pointed  out  by  Shaw,  C.  J., 
in  Dixon  and  wife  v.  Homer  et  al.,  2 
Metcalf,  422 ;    "  There  is  not  much 
analogy  between  the  case  of  a  trustee 
and  that  of  an  executor.     The  great 
duty  of  an  executor  or  administrator, 
is  to  collect  the  assets  of  the  estate, 
and  make  distribution  of  the  same. 
In  doing  this,  he  receives  the  money 
once,  and  disburses  it  once ;  and  his 
compensation  is  not  fixed  until  he  set- 
tles his  account  of  such  receipts  and 
disbursements,  as  far   as   they  have 
been   actually  made.      It   is  then,  a 
compensation    for    services    actually 
done.     The  case  of  a  trustee  is  more 
analogous  to  that  of  a  guardian.     He 
takes  the  pi'operty  to  preserve,  man- 
age, invest,  reinvest,  and  take  the  in- 
come of  it,  perhaps  for  a  short  period, 
perhaps  for  a  long  course  of  years, 
depending  on  various   contingencies. 
It  may  happen  that  the  trust  will  ter- 
minate in  a  few  days  by  the  death  of 
the  trustee,  or  his  resignation  or  re- 
moval, before  any  beneficial  service  is 
performed.    We  think,  therefore,  that 
no  allowance  can  justly  be  made,  by 
way  of  commission,  on  assuming  the 
trust.     An  allowance  of  a  reasonable 
commission  on  net  income  from  real 
and  personal  estate — income  received 


456        COMMISSIONS     TO     TRUSTEES     AND     EXECUTORS. 


and  accounted  for — appears  to  be  a 
suitable  and  proper  mode  of  compen- 
sating trustees  for  the  execution  of 
their  trusts.  Whether  any  allowance 
shall  be  made,  in  addition  to  a  reason- 
able commission,  for  extra  services,  at 
the  determination  of  the  trust  and  set- 
tlement of  the  account,  or  whenever 
accounts  are  settled  during  the  con- 
tinuance of  the  trust,  must  depend  on 
the  circumstances  of  each  case,  as 
they  may  then  exist."  This,  it  will 
be  seen,  entirely  coincides  with  the 
view  taken  in  Pennsylvania;  supra, 
page  451. 

In  Connecticut,  there  appears  to  be 
little  authority  and  no  statutory  pro- 
vision upon  this  subject.  The  Re- 
vised Statutes  of  1849  provide  that 
where  commissioners  are  appointed  to 
receive  and  decide  upon  the  claims  of 
creditors  of  an  insolvent  estate,  "  the 
court  shall  allow  them  a  reasonable 
compensation  for  their  services,  out  of 
the  estate  of  the  deceased ;"  (Revised 
Stat.  ch.  3,  §  56 ;)  but  are  silent  as  to 
the  compensation  of  the  executor  him- 
self. In  Kendall  V.  The  New  England 
Carpet  Co.,  13  Conn.  392,  the  Eng- 
lish rule  was  referred  to  as  a  settled 
principle  of  equity,  but  likened  to 
that  which  holds  to  be  invalid  pur- 
chases made  by  a  trustee  of  the  sub- 
ject of  the  trust — a  rule  which  admits 
of  certain  exceptions  when  the  bar- 
gain is  a  perfectly  open  one.  The 
plaintiff  having  accepted  an  assign- 
ment of  a  manufacturing  company, 
and  carried  on  the  business  on  his 
personal  responsibility,  and  made  large 
advances  in  so  doing,  under  an,  agree- 
ment with  one  of  its  members  that  he 
should  bo  compensated  for  his  services, 
as  though  he  had  no  interest  in  the 


business,  it  was  held  to  be  grossly  in- 
equitable and  unjust,  that  the  com- 
pany should  not  only  draw  the  plain- 
tiff in  to  incur  those  hazards,  and 
render  those  services,  but  that  by  their 
subsequent  silence,  they  should  permit 
him  to  continue  them  a  considerable 
time  after  it  was  known  to  them  what 
claim  he  made  for  those  services,  with- 
out objection  on  their  part.  In  Cant- 
field  V.  Bostwick,  21  Conn.  555,  the 
court  saw  no  error  in  an  allowance,  by 
the  judge  of  probate,  of  a  few  dollars 
for  services,  then  future,  but  certain 
to  be  rendered  by  the  executor. 

In  New  Jersey,  the  Revised  Statutes 
of  1845  provided,  (in  the  words  of 
prior  acts  passed  in  1820  and  1834,) 
that  the  allowance  to  executors,  ad- 
ministrators, guardians,  or  trustees 
should  be  made  with  reference  to  the 
actual  pains,  trouble,  and  risk  in  set- 
tling the  estate,  rather  than  in  respect 
to  the  quantum  of  estate ;  (R.  S.  of 
1845,  tit.  vii.  ch.  5,  §  26,)  and  al- 
though trustees,  of  whatever  name, 
had  always  been  allowed  "  an  adequate 
compensation  ;"  Yoorhees  v.  Stoothorf, 
6  Hals.  149 ;  Jackson  v.  Jackson's 
Ux'rs,  2  Green,  Ch.  R.  113 ;  Warbass 
V.  Armstrong,  2  Stockton,  Ch.  R.  263, 
though  in  some  eases  reluctantly 
awarded  ;  State  Bank  v.  Marsh,  Sax- 
ton,  296;  yet,  until  the  passage  of 
the  Revised  Statutes  of  1855,  the 
amount  of  compensation  seems  to  have 
been  but  little  regulated,  and  it  was 
complained  that  there  was  "  no  subject 
about  which  there  was  greater  uncer- 
tainty— no  accountant  could  guess 
what  he  would  receive — no  person  in- 
terested imagine  what  he  was  to  pay ;" 
Mathis  V.  MatMs,  3  Harrison,  67.  In 
that   case  the   court  refused  on  cer- 


ROBINSON  V.  PETT. 


45T 


tiorari,  to  reverse  the  allowance  by 
the  court  below  to  an  executor  of  fif- 
teen per  cent.,  but  the  decision  was 
based  rather  on  the  ground  that  this 
was  a  matter  of  discretion  with  that 
court,  which  could  not  be  reviewed 
on  certiorari ;  and  the  same  view  was 
taken  in  the  more  recent  case  of 
Stevenson  v.  Phillips,  1  Zabriskie, 
71.  The  commissions  of  an  executor 
would,  it  would  seem,  include  not  only 
an  allowance  for  his  personal  services, 
but  also,  ordinarily,  the  expenses  to 
which  he  had  been  subjected;  Lloyd 
V.  Roice,  Spencer,  Rep.  685. 

Recent  legislation  has,  however, 
placed  this  subject  upon  a  very  exact 
basis  in  New  Jersey.  A  statute  passed 
in  1855  provides  that  on  the  settlement 
of  accounts  of  executors,  administra- 
tors, guardians  and  trustees  under  a 
will,  their  commissions,  over  and  above 
their  actual  and  necessary  expenses, 
shall  not  exceed  the  following  rates; 
on  all  sums  not  exceeding  31000  re- 
ceived and  paid  out,  seven  per  cent., 
if  over  81000,  and  not  exceeding 
§5000,  four  per  cent,  on  such  excess ; 
if  over  $5000  and  not  exceeding 
810,000,  three  per  cent,  on  such  ex- 
cess; and  if  over  $10,000,  two  per 
cent,  on  such  excess ;  and  in  all  cases, 
such  allowance  shall  be  made  for  their 
actual  and  necessary  expenses  as  shall 
be  reasonable  and  just;  provided  that 
the  Act  shall  only  apply  to  such  exe- 
cutors, administrators,  guardians  and 
trustees  as  may  enter  upon  the  dis- 
charge of  their  duties  as  such,  after 
the  Act  should  take  efi"ect,  and  that 
the  ordinary  expenses,  commissions 
and  fees  paid  out  shall  in  no  case  ex- 
ceed, in  the  aggregate,  the  one-fifth 
part  of  the  estate  settled ;  and  where 
provision  shall  be  made  by  will  for 


a  specific  compensation  to  an  executor, 
trustee  or  guardian,  the  same  shall 
be  deemed  a  full  satisfaction  for  his 
services  in  lieu  of  the  said  allowance, 
or  his  share  thereof,  unless  he  shall, 
by  writing  filed  with  the  surrogate, 
renounce  all  claim  to  such  specific 
compensation ;  Act  of  17th  March, 
1855,  §§  9,  10,  Nixon's  Digest,  p. 
562. 

The  English  rule  seems  to  have 
found  a  resting  place  in  Delaware. 
In  a  recent  case  it  was  considered  to 
be  well  settled,  that  a  voluntary  trus- 
tee was  not  entitled  to  any  compensa- 
tion for  time  and  trouble;  he  was  en- 
titled to  have  all  his  charges  paid,  to 
be  indemnified  against  expense  and 
loss,  but  not  to  be  remunerated ;  Eyhert 
V.  Brooks,  3  Harrington,  112.  And  al- 
though in  the  subsequent  case  of  The 
State  V.  Piatt  &  Rogers,  4  Id.  154, 
it  was  asserted  by  counsel,  that  in 
that  state  all  trustees  were  entitled  to 
compensation — executors,  administra- 
tors, guardians,  assignees  of  insolvents, 
and  trustees  appointed  by  the  Or- 
phans' Court  and  the  Court  of  Chan- 
cery to  sell  land  or  perform  other 
duties — yet  the  chancellor,  in  deliver- 
ing the  opinion  of  the  court,  said, 
"  The  existence  of  any  such  policy, 
general  practice,  or  usage  has  not  been 
made  to  appear  by  any  thing  presented 
in  this  case,  or  that  has  occurred  with- 
in the  range  of  our  observation  ;"  and 
in  an  action  brought  by  the  Delaware 
College  to  recover  an  allowance  of 
§200  a  year,  retained  as  a  compensa- 
tion by  two  trustees  of  a  lottery  for 
the  benefit  of  the  College,  it  was  held 
that  they  were  entitled  to  no  compcn- 
satioii,  but  a  small  sum  was  allowed 
them  for  their  expenses.    The  Revised 


458        COMMISSIONS     TO     TRUSTEES     AND     EXECUTORS. 


Statutes  of  1852,  appear  to  contain 
no  legislative  provision  on  this  sub- 
ject. 

In  Maryland,  the  Act  of  1798  gave 
to  the  court  a  discretion  to  vary  the 
amount  of  executor's  commissions  be- 
tween five  and  ten  per  cent,  on  the 
amount  of  the  inventory,  excluding 
what  was  lost  or  perished,  and  pro- 
vided an  additional  allowance  for  such 
costs  and  extraordinary  expenses,  not 
personal,  as  the  court  might  think 
proper,  and  the  discretion  of  the  Or- 
phans' Court  as  to  such  allowance 
was  not,  it  would  seem,  matter  of  re- 
view; Scott  V.  Dorsei/,  1  Harris  & 
Johnson,  232.  By  the  Act  of  1844, 
c.  187,  these  commissions  are  subject 
to  a  tax  of  ten  per  cent,  in  favor  of 
the  state;  see  William  v.  Mosher, 
6  Gill,  454. 

The  statute  has  been  construed 
to  give  executors  a  right  to  their 
commissions  even  although  the  tes- 
tator's will  should  expressly  declare 
otherwise ;  31' Kim  v.  Duncan,  4  Gill, 
72;  and  it  has  been  generally  extended 
to  trustees ;  Rimjgold  v.  Ringgold,  1 
Harris  &  Gill,  27;  Nicholls  v.  Ilodges, 
1  Peters,  S.  C.  Rep.  565;  West  v. 
Smith,  8  How.  U.  S.  It\411;  receivers 
of  insolvent' corporations;  Ahhott  v. 
Bait.  &  liaj).  Steam  Packet  Co.,  4 
Maryland  Ch.  Decisions,  315;  and 
the  like  ;  and  where  one  who,  as  exe- 
cutor, had  already  received  a  commis- 
sion on  property  paid  into  a  trust  fund, 
he  was  subsequently  allowed  a  com- 
mission on  the  same  property  as  trus- 
tee ;  Mitchell  V.  Holmes,  1  Maryland 
Chancery  Decisions,  287.  .  Special 
rules  of  court  have  regulated  the  com- 
missions to  trustees /'>/•  the  sale  of  real 
estate,  a  class  of  fiduciaries  somewhat 


analogous  to  receivers;  these  are  on 
the  first  SlOO  seven  per  cent. ;  on  the 
second,  six  per  cent. ;  on  the  third, 
five ;  on  the  fourth,  four ;  on  the  fifth, 
three  and  a-half;  on  the  sixth,  the 
same;  on  the  seventh  and  eighth, 
three;  and  on  the  ninth  and  tenth, 
two  and  a-half;  and  three  per  cent, 
on  all  above  $53000,  besides  an  allow- 
ance for  expenses  not  personal.  This 
allowance  to  be  increased  in  cases  of 
postponement  at  the  request  of  de- 
fendants, or  of  extraordinary  difiiculty 
.  and  trouble,  and  to  be  lessened  in  case 
of  negligence,  &c.,  at  the  discretion  of 
the  chancellor.  This  commission  "is 
given  to  him  as  a  compensation  for  his 
trouble  and  risk  in  making  the  sale, 
in  bringing  the  money  into  court,  and 
paying  it  away  in  the  manner  direct- 
ed, or  in  other  words,  for  the  perform- 
ance of  all  the  duties  specified  in  the 
decree,  and  the  subsequent  orders,  in 
relation  to  the  sale  and  its  proceeds;" 
Gibson's  case,  1  Bland,  Chancery  R. 
147.  With  respect  to  trustees  ordi- 
narily, though  the  courts  lean  strongly 
against  per  diem  allowances ;  Ring- 
gold V.  Ringgold,  1  Harris  &  Gill,  27, 
the  commissions  seem  rather  liberal, 
and  as  a  general  rule,  chancery,  in 
that  state,  treats  executors  and  trus- 
tees with  indulgence,  both  as  to  com- 
missions and  other  expenses ;  Diffcn- 
derffer  v.  Winter,  3  Gill  &  Johnson, 
347 ;  Jones  v.  StocJcett,  2  Bland,  417; 
Chase  v.  Lockerman,  11  Gill  k  Johns. 
185 ;  Comjiton  v.  Barnes,  4  Gill,  57 ; 
such  as  the  expense  of  employing  an 
attorney ;  Green  v.  Putney,  1  Mary- 
land Ch.  Dec.  267;  Dorsey  v.  Dorsei/, 
10  Maryland,  471;  6  Id.  460 ;  irxparfe 
Young,  8  Gill,  287;  and  though  in 
Williams  V.  Mosher,  the  court  affirm- 
ed a  decree  which  disallowed  trustees 


ROBINSON     V.     PETT. 


459 


a  fee  paid  their  counsel  for  preparing 
their  answer,  yet  it  is  usual  to  allow  an 
attorney  employed  by  them  to  collect 
money  five  per  cent,  upon  the  amount 
collected ;  and  where  the  trustee  is 
himself  an  attorney,  a  similar  allow- 
ance is  made ;  Post  v.  Maclcall,  3 
Bland,  529 ;  Bank  v.  Martin,  3  Ma- 
ryland Ch.  Dec.  225.  Counsel  fees 
are  not,  however,  allowed  in  an  ap- 
peal where  the  judgment  of  the  court 
below  was  sufficient  to  protect  the  exe- 
cutor, and  it  was  not  his  duty  to  ap- 
peal ;  Dorsey  v.  Dor^ey,  supra.  In* 
Eversfield  v.  Eversjield,  4  Harris  & 
Johnson,  12,  and  Waring  v.  Darnell, 
10  Gill  &  Johnson,  136,  five  per  cent, 
commission  was  allowed ;  and  in  Win- 
ter V.  Diffenderffer,  2  Bland,  Ch. 
207,  where  the  management  of  the 
estate  was  troublesome,  ten  per  cent, 
was  given ;  and  this  was  not  affected 
by  the  trustee  having  been  charged 
with  compound  interest.  The  rule  on 
this  point  was  clearly  explained  in  that 
case  by  Bland,  Ch.,  in  the  following 
language  :  '*  The  principle  upon  which 
a  court  of  chancery  awards  simple  or 
compound  interest  to  a  party  whose 
money  has  been  unjustly  withheld  or 
misapplied,  is  that  of  commutative 
justice,  considering  the  interest  as  a 
full  compensation  for  the  injustice 
done,  and  as  the  proper  or  only  remu- 
neration which  the  court  can  award 
in  such  cases,  and  consequently  to  les- 
sen or  altogether  to  withhold  from  a 
trustee  any  allowance  to  which  he 
may  be  justly  entitled,  upon  the  same 
ground  on  which  he  had  been  charg- 
ed with  simple  or  compound  interest, 
would  be,  in  effect,  to  impose  upon 
him  a  fine  or  forfeiture,  upon  the  prin- 
ciples of  vindictive  justice,  and  to  pun- 
ish him  for  an  offence,  which  the  court 


itself  had  declared,  would  be  suffi- 
ciently expiated  by  the  payment  of 
simple  or  compound  interest.  The 
duties  performed  by  a  trustee,  may 
have  been  so  light,  or  may  have  been 
performed  in  so  negligent  or  unskilful 
a  manner,  as,  on  that  ground,  to  en- 
title him  to  small  or  no  commission  at 
all ;  but  to  whatever  compensation  he 
may  be  entitled,  they  certainly  should 
not  be  lessened  or  altogether  withheld, 
on  the  ground  of  his  having  done,  or 
omitted  to  do  anything  for  which  the 
payment  of  simple  or  compound  in- 
terest had  been  awarded  as  a  compen- 
sation, because  every  single  transac- 
tion must  be  considered  by  itself. 
Recollecting,  however,  that  a  trustee 
cannot  be  allowed  to  retain  or  receive 
anything  as  a  compensation,  until  he 
has  paid  all  he  owes  to  the  plaintiffs 
or  cestui  que  trust."  See  Tliomas  v. 
The  Frederick  County  School,  9  Gill 
&  Johnson,  115.  In  Ridgelyy.  Git- 
tings,  2  Harris  &  Gill,  Gl,  no  compen- 
sation was  given  to  one  who  undertook 
the  trust  upon  a  promise  to  do  so  on 
payment  of  his  expenses  merely. 

Nor  are  the  courts  of  Maryland  un- 
reasonable in  burdening  an  executor 
or  trustee  with  duties  not  strictly  per- 
tinent to  his  office.  In  Lee  v.  Welsh, 
6  Gill  &  Johnson,  316,  it  was  said, 
"  An  executor,  in  finishing  the  crops 
of  the  deceased,  is  not  bound  to  dis- 
charge the  duties  of  an  overseer.  To 
impose  on  him  such  a  duty  would  be 
virtually  to  exclude  from  that  office 
most  persons  whose  services  it  would  ' 
be  desirable  to  engage  in  that  capaci- 
ty. Suppose  the  deceased  were  the 
owner  of  many  farms,  and  in  different 
sections  of  the  state,  on  all  of  which 
valuable  crops  were  growing,  which  it 
was  the  interest  of  the  estate  that  the 


460 


COMMISSIONS     TO     TRUSTEES     AND     EXECUTORS. 


executor  should  complete,  is  lie  bound, 
should  it  be  practicable,  to  officiate  as 
an  overseer  on  every  farm  ?  Certainly 
not.  No  duties  so  unreasonable  are 
imposed  on  him  by  the  law.  He  may 
employ  and  pay  out  of  the  assets  in 
his  hands  as  many  as  are  necessary 
for  the  completion  and  preservation  of 
the  crops.  If,  with  more  advantage 
to  the  estate,  he  acts  in  the  capacity 
of  an  overseer  himself,  it  is  competent 
for  the  Orphans'  Court  to  allow  him  a 
reasonable  compensation  for  his  ser- 
vices," and  in  Evans  v.  Inglehart,  6 
Gill  &  Johnson,  the  same  view  was 
taken. 

But  an  administrator  who  employed 
an  agent  to  collect  money  for  the  es- 
tate was  not  allowed  credit  for  what 
he  had  paid  him,  the  agent  being  nei- 
ther a  public  officer  nor  an  attorney, 
and  no  legal  process  being  in  any  way 
necessary;  Gwijnn  v.  Dorsey,  4  Gill 
&  Johnson,  453. 

In  case  of  a  j9ar^ta?  administration 
by  an  executor,  the  court,  (under  the 
Act  of  1820,  "  in  which  the  minimum 
rate  of  allowance  is  purposely  omit- 
ted,") "have  unquestioned  power  to 
allow  such  compensation  as  the  ser- 
vices actually  merit,  .  .  .  they 
may  give  one  per  cent,  and  even  less, 
if  necessary.  When  there  has  been 
a  full  administration,  the  court  can- 
not descend  below  five  per  cent.  ;" 
M'Pherson  v.  Israel,  5  Gill  &  Johns. 
60 ;  Parlcer  v.  Gu-ijnnj  4  Maryland, 
423 ;  and  the  time  of  allowing  the 
compensation  seems  within  the  dis- 
cretion of  the  court.  "  Of  course  they 
would  aim  to  make  the  commission 
allowed  correspond  with  the  duties 
performed,  and  in  passing  every  ac- 
count,   would   look   to   the    advance 


made  by  the  administrator;"    Gwynn 
V.  Dorsey,  4  Gill  &  Johnson,  453. 

In  Virginia,  the  Revised  Statutes  of 
184S  direct  that  the  commissioner,  in 
settling  the  accounts  of  any  '^  fidu- 
ciary," (which  includes,  "  every  per- 
sonal representative,  guardian,  exe- 
cutor, or  committee,")  shall  allow  the 
reasonable  expenses  incurred  by  him 
as  such,  and  also,  except  in  cases 
in  which  it  is  otherwise  provided,  a 
reasonable  compensation  in  the  form 
»of  a  commission  on  receipts  or  other- 
wise. This  provision  has  been  taken 
substantially  from  the  prior  acts  of 
1820  and  1825,  and  there  were  other 
earlier  statutes.  As  a  general  rule, 
except  where  a  legacy  is  given  to 
executors,  or  a  specific  sum  allowed 
in  the  creation  of  the  trust,  (in  which 
case  commissions  are  not  allowed  in 
addition ;  Jones  v.  Williams,  2  Call, 
105,)  it  is  held  that  no  more  than 
five  per  cent,  on  the  amount  of  the 
receipts  can  be  allowed;  Granhcrry 
V.  Granherry,  1  Washington,  240; 
Taliaferro  v.  Minor,  2  Call,  197; 
Miller  V.  Beverleys,  4  Hen,  &,  Munf. 
420  ;  Tripletis  Ex'rs  v.  Jameson,  2 
IMunf.  242 ;  Ilipkins  v.  Bernard,  4 
Id.  83 ;  Kee  v.  Kee,  2  Grattan,  132  : 
(even  though  a  testator  has  directed 
that  his  executor  shall  be  "  handsomely 
paid,"  Waddy  v.  Hawkins,  4  Leigh, 
458  :)  and  this  also  applies  to  com- 
missioners who  sell  real  estate  under 
decree  of  court;  Lyons  v.  Byrdet  al., 
2  Hen.  &  Munf.  22,  and  to  a  con- 
signee; Dcanes  v.  Scriha,  2  Call, 
416.  But,  said  Tucker,  J.,  in  Fitz- 
gerald V.  Jones,  1  IMunf.  156,  "  I 
very  much  incline  to  think  that  where 
the  mana'remcnt  of  an  estate  is  thrown 


ROBINSON  V.   PETT. 


461 


upon  an  executor,  and  the  care  and 
education  of  a  family  of  children  with 
it,  that  an  executor  ought  to  have  a 
more  liberal  allowance  than  a  bare 
commission  of  five  per  cent,  upon  his 
receipts  or  expenditures.  In  the  pre- 
sent instance,  the  testator  left  five 
children,  apparently  minors,  who  re- 
mained so  many  years.  He  charged 
his  whole  estate  with  the  payment  of 
his  daughters'  legacies,  if  it  could  be 
effected  out  of  the  profits  before  either 
of  them  married  or  came  of  age.  To 
do  this  the  executor  must  do  many 
things  beyond  what  the  duty  of  an 
executor,  in  ordinary  cases,  imposes. 
His  personal  trouble  and  responsibility 
under  such  circumstances  may  be  in- 
creased ten  fold.  He  ought  to  be 
compensated  accordingly,  whenever  it 
appears  that  he  has  faithfully  dis- 
charged the  extraordinary  duty  im- 
posed upon  him  by  his  testator."  In 
this  case  a  gross  charge  of  75?.  a  year, 
for  managing  plantations  fifty  miles 
off,  was  struck  out,  and  an  addition  of 
two  and  a-half  per  cent,  allowed  to 
the  usual  commi.ssion  of  five  per  cent. 
Where  estates  have  been  large  and 
very  troublesome,  ten  per  cent,  has 
been  allowed  in  full  for  commissions 
and  the  expense  of  employing  clerks 
and  agents;  31' Call  v.  Peachi/'s  Ad- 
ministrator, 3  Munf.  306,  and  some- 
times five  per  cent,  in  addition  to 
those  expenses;  JTipkins  v.  Bernard, 
4  Id.  93 ;  Farnci/liowjh' s  Ex'rs  v. 
Dickerson  et  al.,  2  Robinson,  589. 
So  ten  per  cent,  has  been  allowed 
where  the  debts  were  small  and  numer- 
ous, and  the  debtors  presumed  to  be 
much  dispersed;  Cavendish  v.  Flem- 
ing, 8  Munf.  201.  But  where  debtors 
resided  near  the  executor,  he  was  not 
allowed  commissions  to  attorneys  for 


collection,  in  the  absence  of  evidence 
that  it  was  attended  with  difficulty; 
Carter's  Ex'rs  v.  Cutting  and  Wife, 
5  Munf.  241 ;  and  in  Shejypard  v. 
SfarJce,  3  Munf.  29,  five  per  cent, 
was  given  in  lieu  of  all  expenses ;  but 
in  general,  these,  {^Lindsay  v.  Hower- 
ton,  2  Hen.  &  Munf.  9,)  and  '*  all  rea- 
sonable charges  and  disbursements" 
are  allowed;  Lindsay  v.  Hoiverton,  2 
Hen.  &  Munf.  9;  JVimmo's  Ex'rs  v. 
The  Commomvealth,  4  Id.  57.  Al- 
though in  IlipMns  v.  Bernard,  2 
Hen.  &  Munf.  21,  an  executor  was 
held  not  entitled  to  charge  commis- 
sions for  turning  certain  bonds  into 
mortgages,  yet  in  the  same  case,  (4 
Munf.  83,)  this  was  overruled  and  the 
commissions  allowed.  So  where  bonds, 
instead  of  being  collected,  were  trans- 
ferred to  the  legatees  and  received  by 
them ;  Farneyhough  v.  DicA-erson,  2 
Robinson,  582 ;  or  where  grain,  which 
otherwise  it  would  have  been  the  exe- 
cutor's duty  to  sell  as  perishable,  was 
divided  in  kind  among  the  legatees; 
Clay  comb  v.  Claycomb,  10  Grattan, 
589 ;  but  not  so,  upon  the  appraised 
value  of  slaves  so  divided,  where  the 
condition  of  the  estate  did  not  require 
their  sale.  lb.  But  no  commissions 
can  be  charged  on  a  debt  due  by  the 
executor  to  the  estate;  Farneylwngh 
V.  DicTierson,  suj^ra ;  and  notwith- 
standing that  compensation  is  in  a 
manner  secured  by  statute  it  seems 
to  be  held  that  its  allowance,  never- 
theless, depends  upon  the  bona  fides 
of  the  fiduciary;  Wood  v.  Garnett,  6 
Leigh,  277 ;  Boyd  v.  Boyd,  3  Grat- 
tan,  125.  Under  the  express  provi- 
sions of  the  Act  of  1825,  it  has  been 
held  that  an  executor  who  failed  to 
file  his  accounts  in  conformity  with 
its  requisitions   was  deprived  of  all 


462        COMMISSIONS     TO     TRUSTEES     AND     EXECUTOES. 


compensation,  no  matter  how  meri- 
torious his  conduct  might  have  been  ; 
Wood  V.  Garnett,  supra  ;  Turner  v. 
Turner  s  Adm'r,  1  Grattan,  11;  and 
partial  payments  made  by  the  execu- 
tor to  legatees,  from  time  to  time, 
though  the  amount  paid  may  exceed 
that  to  which  they  were  ultimately 
found  to  be  entitled,  do  not  constitute 
such  a  settlement  of  the  account  as  to 
take  the  case  out  of  the  statute  j  Hel- 
son  V.  Page,  7  Grattan,  1G6. 

Originally,  the  rule  in  North  Caro- 
lina as  to  executors  was  by  force  of 
the  common  law,  and  the  act  of  1789, 
a  very  strict  one;  Schcnv  v.  Schaic,  1 
Taylor,  125.  But  it  was  altered  in 
1799,  by  an  act  whose  provisions  were 
substantially  followed  in  the  subse- 
quent Revised  Statutes  of  1836-7, 
(Ch.  46,  §  29,)  which  directed  that 
courts  should  take  into  consideration 
the  trouble  and  time  expended  by 
executors  in  the  management  of  the 
estate,  and  make  an  allowance  not  ex- 
ceeding five  per  cent,  for  the  amount 
of  the  receipts  and  expenditures  which 
should  appear  to  have  been  fairly 
made;  which  amount  they  might  re- 
tain as  well  against  creditors  as  lega- 
tees and  distributees,  together  with 
the  necessary  charges  and  disburse- 
ments theretofore  allowed.  The  lie- 
vised  Statutes  of  1854,  (ch.  46,  sec. 
38,  llev.  Stat.  p.  288,)  have  substan- 
tially re-enacted  these  provisions,  and 
added  that  in  sales  of  lands,  by  license 
of  court,  for  payment  of  debts,  commis- 
sions shall  not  be  allowed  on  any  larger 
amount  of  the  proceeds,  than  the  sum 
actually  applied  in  payment  of  debts. 
The  provisions  of  these  acts  are  applied 
also  to  guardians  ;  JIod(je  v.  JLdckins, 
1  Dcv.  &  Bat.  567.     "  The  court  has 


the  power,"  it  was  said  in  Bond  v. 
Turner,  2  Taylor,  125,  in  speaking  of 
the  Act  of  1799,  *'  of  allowing  five  per 
cent,  commission  on  the  receipts,  and 
the  same  on  the  disbursements.  It 
has  a  discretionary  power  to  allow  less, 
but  not  more  than  five  per  cent. ;" 
and  accordingly  in  Peyton  v.  Smith, 
2  Dev.  &  Bat.  E(i.  349,  the  commis- 
sion was  reduced  to  five  per  cent. ; 
and  where  executors,  under  an  arrange- 
ment with  a  guardian,  transferred  to 
him  bonds  instead  of  collecting  their 
proceeds,  the  commissions  were  re- 
duced to  two  and  a  half  per  cent. ; 
Walton  V.  Avery,  2  Dev.  &  Bat.  405; 
and  in  the  recent  case  of  Turnage  v. 
Green,  2  Jones,  Eq.  R.  66,  it  was 
said,  "  it  is  proper  that  this  court 
should  declare  that  it  will  not  sanc- 
tion a  charge  by  a  trustee  of  five  per 
cent,  commission  for  simply  receiving 
and  paying  over  dividends  of  bank 
stock."  The  right  to  commissions  has 
been,  however,  recognized  even  where 
the  executor  has  been  charged  with 
compound  interest;  Peyton  v.  Smith, 
2  Dev.  &  Bat.  325 ;  or  has  made  a 
resistance  to  just  claims;  Thompson 
v.  M'Donald,  2  Id.  481.  So  where 
a  legacy  is  left  to  him,  unless  it  ap- 
pear that  it  was  given  in  satisfaction, 
or  in  lieu  of  commissions;  Oden  v. 
Windby,  2  Jones,  Eq.  R.  445.  But 
in  Arnold  v.  Byars,  2  Dev.  Eq.  4,  it 
seems  to  have  been  thought  that  a 
claim  to  commissions  would  be  for- 
feited by  dishonest  conduct,  and  in 
Finch  V.  Rayhind,  lb.  141,  it  was 
held  to  bo  a  general,  though  not  a 
universal  rule,  that  commissions  arc 
not  to  be  allowed  where  no  regular 
accounts  have  been  kept.  Besides 
these  commissions,  executors  are  al- 
lowed  their  actual    expenses  in  the 


ROBINSON     V.     PETT. 


463 


faithful  discharge  of  their  duty,  such 
as  those  of  attendiug  necessary  sales, 
of  sending  an  agent  out  of  the  state; 
Whitted  V.  Webb,  2  Dev.  &  Bat.  442  ; 
counsel  fees ;  Hester  v.  Hester,  3  Ire- 
dell, Eq.  9;  Poindexter  v.  Gibson,  1 
Jones,  Eq.  E..  44 ;  Morris  v.  Morris, 
lb.  326  ;  but  not  for  personal  services 
in  addition  to  travelling  expenses  and 
commissions,  "  as  the  latter  are  allowed 
for  the  very  purpose  of  remunerating 
an  executor  or  administrator  for  the 
personal  attention  which  he  devotes  to 
the  estate,  and  he  is  not  be  allowed  to 
make  an  extra  charge  for  it ;"  Morris 
V.  3Iorris,  supra.  As  to  the  correc- 
tion, in  a  court  of  equity,  of  commis- 
sions allowed  by  masters  or  county 
courts,  see  Thompson  v.  3P Donald; 
Graham  v.  Davidson,  2  Dev.  &  Bat. 
155 ;  SpurhiU  v.  Cannon,  lb.  400 ; 
Walton  V.  Avery,  lb.  405;  Whitted 
V.  Webb,  lb.  433.  In  Potter  v. 
Stone,  2  Hawks,  31,  (a  case  over- 
ruled on  another  point  by  Ex  parte 
Houghton,  3  Dev.  441,)  it  was  said, 
"  for  the  sake  of  future  cases,  we 
think  it  right  to  add,  that  payments 
made  to  distributees  on  account  of 
their  portions,  whether  before  the  ad- 
ministration is  settled  or  at  the  close 
of  it,  cannot  be  considered  as  expen- 
ditures, and  therefore  no  allowance  of 
commissions  can  be  made  on  them," 
and  this  rule  was  subsequently  ap- 
proved in  Clark  v.  Blount,  2  Dev.  Eq. 
55,  and  Peyton  v.  Smith,  2  Dev.  & 
Bat.  345.  So,  commissions  will  not 
be  allowed  on  the  value  of  slaves  left 
by  an  intestate;  Walton  v.  Avery,  2 
Dev.  &  Bat.  413 ;  but  where  an  ad- 
ministrator purchased  slaves  for  the 
benefit  of  the  estate,  under  an  execu- 
tion upon  a  debt  due  to  it,  and  handed 
them  over  specifically,  a  commission 


of  two  and  a-half  per  cent,  was  given ; 
Sellers  v.  Ashford,  2  Iredell,  Chan- 
cery, 107 ;  and  where  executors  have, 
virtute  officii,  the  management  of  a 
fund  for  an  infant  under  a  trust  for 
its  accumulation,  the  regular  compen- 
sation will  be  allowed  them  ;  Perry  v. 
iMaxwell,  2  Dev.  Eq.  507.  The  ap- 
portionment of  commissions  among 
two  or  more,  is  always  regulated  by 
the  circumstances  of  the  case.  "  The 
fact  of  a  joint  agency  does  not  give 
the  right  to  one-half  the  value  of  the 
entire  services ;"  Hodge  v.  Hawkins, 
1  Dev.  &  Bat.  567 ;  Grant  v.  Pride, 

1  Dev.  Eq.  269 ;  Perry  v.  Maxwell, 

2  Id.  507;  and  where  an  executor  has 
suffered  the  personal  estate  to  go  out 
of  his  hands,  he  is  not  allowed  to  sub- 
ject the  real  estate,  in  the  hands  of  the 
heir,  to  a  charge  for  his  services; 
Newsom  V.  Neiosom,  3  Iredell,  Chan- 
cery, 411. 

•Up  to  the  year  1833,  it  would  seem 
by  the  case  of  Boyd  v.  Hnvkins,  2 
Dev.  Eq.  R.  211,  that  the  extension 
of  these  rules  to  trustees  had  not  been 
formally  recognized  from  the  bench ; 
on  the  contrary,  it  was  there  said, 
"  the  farthest  we  can  go,  is  to  permit 
a  stipulation  for  compensation  at  the 
contracting  of  the  relation."  But  on 
a  rehearing  of  that  ease,  (2  Dev.  Eq. 
334,)  it  was  said  by  Ruffin,  J.,  who 
delivered  the  opinion  of  the  court, 
"We  are  informed  that  it  has  been 
usual  in  some  parts  of  this  state,  for 
trustees  to  charge  for  services,  and 
that  the  profession  have  no  decided 
opinion  against  it.  The  amount  will 
of  course  be  according  to  the  circum- 
stances, and  not  beyond  that  which 
would,  under  the  statutes,  be  made  to 
executors ;  and  if  fixed  by  the  parties, 
it  will  be  subject  to  the  revision  of  the 


464        COMMISSIONS     TO     TRUSTEES     AND     EXECUTORS. 


court,  and  be  reduced  to  what  is  fair, 
or  altogether  denied,  if  the  stipulation 
for  it  has  been  coerced  by  the  creditor 
as  the  price  of  indulgence,  or  as  a  cover 
to  illegal  interest,  or  the  conduct  of 
the  trustee  has  been  mala  fide  and  in- 
jurious to  the  cestui  que  trust.  AVhe- 
ther  it  shall  be  given  as  a  commission 
or  not,  is  hardly  worth  disputing 
about ;  that  may  be  a  convenient  mode 
of  computing  in  most  cases,  but  the 
true  object  is  a  just  alloicance  for 
time,  labor,  services  and  expenses, 
under  all  the  circumstances  that  may 
be  shown  before  a  master."  And  in 
the  recent  coses  of  SheriU  v.  Shii/ord, 
G  Iredell,  Eq.  228,  and  Rai/ord  v. 
Rat  ford,  lb.  495,  this  was  approved ; 
and  in  Ingram  v.  KirJcpatrick,  8  Id. 
62,  it  was  held,  that  two  and  a-half 
per  cent,  charged  by  a  trustee  for  the 
benefit  of  creditors,  on  the  proceeds 
of  sale  of  real  estate,  was  a  proper 
commission. 

Under  the  statutes  of  South  Caro- 
lina, the  courts  in  that  state  seem  to 
have  felt  themselves  little  authorized 
to  exercise  a  discretion  of  their  own. 
The  Act  of  1789  allowed  to  execu- 
tors and  administrators  a  sum  not  ex- 
ceeding fifty  shillings  for  every  hun- 
dred pounds  they  should  pay  away  in 
credits,  debts,  legacies,  or  otherwise, 
during  the  continuance  of  their  ad- 
ministration, which  commissions  were 
to  be  divided  between  them  in  pro- 
portion to  the  services  by  them  respec- 
tively performed  ;  and  they  were  also 
allowed  twenty  shillings  for  every  ten 
pounds,  "  for  all  sums  arising  by  mo- 
neys let  out  at  interest;"  Act  of  13th 
March,  1780,  (5  Statutes,  112.) 
These  provisions  were  taken  from  the 
seventh   section  of  a   prior   statute, 


passed  in  1745,  which  further  de- 
clared that  any  executor,  guardian, 
or  trustee,  who  should  have  had  ex- 
traordinary trouble  in  the  management 
of  the  estate,  and  should  not  be  satis- 
fied with  the  sums  thus  allowed,  should 
be  at  liberty  to  bring  an  action  for  ser- 
vices, in  which,  howcA^er,  the  verdict 
was  to  be  limited  to  five  per  cent,  over 
and  above  the  sums  before  mentioned. 
This  section  was  not  repealed  or  sup- 
plied by  the  Act  of  1789;  Ex  parte 
Witherspoon,  3  llichardson,  Eq.  R. 
14,  note.  For  the  Statutes  of  1839  and 
1846,  as  to  the  commissions  of  the 
ordinary  in  cases  of  derelict  estates, 
see  Norton  v.  Gilllson,  4  Eichardson, 
Eq.  219. 

The  allowance  given  by  these  sta- 
tutes to  executors  has  uniformly  been 
held  to  cover  all  those  expenses  which 
are  sometimes  termed  personal;  Lo- 
gan V.  Logan,  1  M'Cord,  Chancery,  5. 
Thus  the  courts  have  felt  themselves 
bound  to  strike  out  any  charge  for 
travelling  expenses,  &c.,  and  have  re- 
ferred the  parties  claiming  them  to 
the  action  at  law  prescribed  by  the 
statute ;  Snoio  v.  Collum,  1  Dessaus. 
542 ;  although  in  Erwin  v.  Seigling, 
Riley,  Ch.  202,  the  court  held,  that 
the  extraordinary  trouble  of  an  execu- 
tor in  going  to  and  from  Cuba  to  at- 
tend to  complicated  afi'airs  of  the  es- 
tate was  a  sufiicient  consideration  to 
support  a  gift  of  $1000  from  the  lega- 
tees. In  Ruff  V.  The  Executors  of 
Summers,  3  Id.  329,  Dessaussure, 
Ch.,  said,  ''  it  has  always  appeared  to 
me,  that  the  ground  for  compensation 
to  executors  being  made  by  law  to  rest 
solely  on  the  foundation  of  money  re- 
ceived and  paid  away,  is  not  a  perfect- 
ly reasonable  rule,  inasmuch  as  there 
is  often  great  service  performed  by 


ROBINSON     V.     PETT. 


465 


executors,  wliere  only  small  sums  of 
money  are  received  and  paid  away;" 
it  was,  however,  held  in  that  case,  that 
the  action  given  to  executors  covered 
all  cases  and  was  their  only  remedy. 
In  the  subsequent  case  of  Logan  v. 
Logan,  1  M'Cord,  Ch.  li.  1,  it  was 
said  by  Nott,  J.,  "  I  have  no  doubt 
but  an  executor  might  be  allowed  by 
a  court  of  law,  and  perhaps  by  a  court 
of  equity,  to  retain  money  allowed  to 
agents  or  accountants,  for  adjusting 
difficult  and  complicated  accounts  of 
the  estate.  But  I  should  not  think 
him  entitled  either  in  law  or  equity, 
to  retain  for  money  paid  an  account- 
ant, for  settling  and  adjusting /u'sozc/i 
accounts."  "  There  is  a  distinction," 
said  Johnson,  J.,  in  Teaguey.  Bendy, 
2  M'Cord,  Ch.  213,  "between  those 
services  for  which  a  compensation  is 
allowed  by  the  statute,  and  the  ex- 
penses incurred  in  the  course  of  the 
administration.  The  former  referred 
to  those  duties  which  an  administra- 
tor is  supposed  to  undertake,  and  the 
latter,  to  such  as  require  the  aid  of 
professional  skill,  to  which  he  is  not 
supposed  to  be  competent.  The  con- 
duct and  arrangement  of  a  law-suit, 
is  an  illustration  of  the  latter;"  Ed- 
monds V.  Cransliaw,  Harper,  233. 
But  counsel  fees  are  not  allowed  when 
paid  to  sustain  the  position  of  the  exe- 
cutor against  those  beneficially  inter- 
ested; Villard  V.  Robert,  1  Strobh. 
Equity,  393;  Garrett  v.  Garrett,  2 
Id.  272 ;  Wham  v.  Love,  Rice,  Eq. 
51 ;  even  when  he  successfully  de- 
fends himself  from  charges  brought 
against  him.  "  That  entitled  him  to 
his  costs.  But  though  the  court  has 
authority  to  decree  costs  according  to 
the  merits  of  the  case,  it  can  go  no 
further.  It  has  no  authority  to  decree 
VOL.  II. — 30 


counsel  fees  in  any  case,  unless  they 
are  incurred  as  expenses  of  adminis- 
tration. An  executor's  case  differs  in 
no  respect  from  any  other  case,  and 
unless  we  take  upon  us  to  decree 
counsel  fees  in  every  case,  according 
to  the  merits  of  the  parties,  we  have 
no  right  to  do  it  on  the  ground  of 
merit  alone,  in  the  case  of  an  execu- 
tor;" Atchison  V.  Robertson,  4  Ilich- 
ardson,  Equity  Reports,  41.  Charges 
for  overseers'  wages,  as  well  as  for 
clerk  hire,  auctioneers,  &c.,  may  pro- 
perly be  classed  among  those  not  per- 
sonal, since  their  employment  is,  in 
general,  directly  for  the  benefit  of  the 
estate;  Gannett  v.  Garrett,  2  Strobh. 
Eq.  271,  and  in  many  eases  ab- 
solutely necessary,  and  a  guardian 
will  be  reimbursed  for  the  expense  of 
employing  agents  out  of  the  state,  al- 
though not  obliged  to  do  so ;  Huson 
V.  WaU(cce,  1  Rich.  Eq.  18 ;  but  an 
executor  is  not  allowed  to  charge  com- 
missions and  to  credit  himself  besides 
with  overseer's  wages,  when  he  has 
himself  performed  overseer's  work; 
Jenkins  v.  Flckling,  4  Des.  470 ;  Ed- 
monds V.  Crenshaw,  Harper,  232  ;  nor 
with  a  counsel  fee  for  services  per- 
formed by  himself  as  an  attorney. 
"  In  other  words,  he  can  make  no  con- 
tract with  himself.  He  may  employ 
aiother  overseer,  another  physician, 
another  lawyer,  and  pay  them  for  their 
services,  which  payment  will  be  allow- 
ed him.  But  he  can  make  no  bargain 
with  himself;"  Mayer  v.  GaUuchet, 
6  Richardson,  Equity,  2. 

Where  an  executor  pays  money  to 
himself,  as  guardian,  he  is  allowed 
two  and  a-half  per  cent,  as  executor, 
for  transferring  it,  and  the  same  com- 
mission as  guardian,  for  receiving  it; 
Ex  parte  Witherspoon,  3  Richardson, 


466 


COMMISSIONS     TO     TRUSTEES     AND     EXECUTORS. 


Equity,  13 ;  and  in  Deas  v.  Span, 
Harper,  Eq.  R.  27G,  and  Gist  v.  Gist, 
2  31 'Cord,  Ch.  R.  474,  the  statutes 
received  a  liberal  construction  as  to 
the  allowance  of  commissions  on  the 
amount  of  bonds  taken  for  the  pur- 
chase-money of  real  estate ;  so  where 
the  executor  purchased  the  estate  him- 
self; Vance  v.  Garjj,  Rice,  Equity, 
2.  So  where  it  was  purchased  by  a 
creditor,  and  an  equitable  adjustment 
made  of  the  debits  and  credits,  though 
no  money  passed;  Kiddle  v.  Ham- 
mond, Harper,  223;  or  where  a  part 
of  the  assets  of  the  estate  consisted 
in  a  debt  due  by  himself,  which  was 
therefore  considered  as  cash  in  his 
hands ;  Griffin  v.  Bonham,  9  Rich- 
ardson, 71 ;  though  in  Ball\.  Brown, 
Bailey,  Eq.  374,  they  were  denied 
on  the  proceeds  of  land  sold  under  de- 
cree in  chancery  for  the  foreclosure  of 
a  mortgage,  on  the  ground  that  the 
money  was  neither  ''  received"  nor 
''  paid  away"  by  the  executors.  So 
full  commissions  were  refused  where 
the  estate  is,  under  a  decree  in  equity, 
paid  over  to  a  commissioner;  Thomp- 
son V.  Palmer,  3  Richardson,  Equity, 
141 ;  and  in  Huson  v.  Wallace,  1  Id. 
2,  where  an  administrator  was  com- 
pelled to  account,  at  an  advanced 
price,  for  property  of  the  estate  which 
he  had  bought  at  an  under-value,  he 
was  denied  commissions  on  the  ad- 
vance. And  in  Edmonds  v.  Cren- 
shaw, Harper,  233,  where  a  testator 
bequeathed  to  his  executors  ten  per 
cent.  "  on  the  whole  amount  of  mo- 
neys to  be  collected  from  the  sale  of 
the  estate,  and  of  outstanding  debts 
due,  or  which  mifjht  themtftrr  become 
due;"  it  was  held  that  the  conimis- 
sion  should  be  allowed  on  the  sums 


actually  collected  by  them,  but  not  on 
those  sums  which  they  had  failed  to 
collect. 

The  Act  of  1789  further  provided 
that  an  executor  should  file  annual 
accounts,  and  a  neglect  so  to  do  for- 
feited all  compensation.  A  substan- 
tial compliance  with  this  portion  of  the 
statute  is  always  insisted  on ;  Benson 
V.  Bruce,  4  Dess.  404 ;  Edmonds  v. 
Crenshaw,  Harper,  233 ;  and  it  has 
been  held  that  the  failure  to  make  the 
yearly  returns  not  only  forfeits  all  com- 
missions, but  also  all  claim  for  extra 
services;  Frazier  and  Wife  v.  Vaux, 

1  Hill,  Ch.  203 ;    Wright  v.  Wright, 

2  M'Cord,  Ch.  196.  In  certain  cases, 
however,  the  lapse  of  a  few  months 
over  the  time  of  filing  the  last  account 
has  been  sanctioned ;  Jenkins  v.  Fick- 
ling,  4  Dess.  370;  Black  y.Blakehj, 
2  M'Cord,  Ch.  8  ;  and  if  the  execu- 
tor die  before  the  time  for  submitting 
his  accounts,  his  commissions  are  of 
course  not  forfeited,  but  his  represen- 
tative is  allowed  a  year  within  which 
to  do  so.  The  provision  has,  moreover, 
been  held  not  to  be  retrospective,  so 
as  to  preclude  an  executor  from  com- 
missions where  for  several  years  prior 
to  its  passage  he  had  filed  no  accounts. 
Assignees  of  Ramsey  v.  Ellis,  3  Dess. 
78.  But  even  when  the  account  is 
regularly  filed,  yet  if  it  be  unaccom- 
panied by  proper  vouchers,  the  com- 
mission will  be  disallowed ;  Black  v. 
Blakehj,  supra;  and  in  McDowell  \. 
Caldwell,  2  M'Cord,  Ch.  59,  it  was  said 
by  the  court,  that  if  a  person  who 
stands  in  a  fiduciary  position  will  suf- 
fer his  transactions  to  be  involved  in 
obscurity  when  by  a  proper  attention 
to  his  duty,  and  the  interest  of  his 
cestui  que  trust,  he  might  have  remov- 


ROBINSON     V.     PETT. 


467 


ed  it,  if  he  be  entitled  to  amj  remu- 
neration, it  furnishes  a  good  reason  for 
putting  it  on  the  lowest  estimate. 

The  allowance  of  "  ten  per  cent. 
for  all  sums  arising  by  moneys  put 
out  at  interest,"  was  held  in  Tavaux 
V.  Ball,  1  M'Cord,  Eq.  458,  to  be 
"  evidently  intended  as  compensation 
for  the  trouble  of  managing  the  fund 
while  in  the  hands  of  the  executor, 
and  the  two  and  a-half  per  cent,  for 
paying  away,  refers  to  the  final  dispo- 
sition of  it,  or  in  other  words,  to  that 
point  of  time  when  the  executor's 
power  over  it  ceases,  or  when  he  has 
disposed  of  it  in  the  manner  directed 
by  the  will  of  the  testator.  It  cannot, 
without  great  injustice,  be  referred  to 
any  other  time,  for  if  it  was  to  be  al- 
lowed for  every  application  or  appro- 
priation, the  executor  might,  by  let- 
ting out  and  calling  in  at  short  peri- 
ods, make  his  commissions  exceed  any 
profits  which  could  be  expected  to 
arise  by  way  of  interest.  The  mode  of 
determining  what  time  he  is  to  be  cre- 
dited with  it  is  by  inquiring  whether 
he  has  made  a  final  disposition  of  the 
fund."  And  it  was  held  that  an  exe- 
cutor was  entitled  to  two  and  a-half 
per  cent,  for  receiving  money,  ten  per 
cent,  on  the  interest  made  by  him  on 
it,  and  two  and  a-half  per  cent,  on 
the  capital  and  interest  finally  paid 
over  by  him  to  the  party  interested. 
The  same  compensation  was  also  al- 
lowed when,  instead  of  investing  the 
money  in  other  hands,  the  executor, 
in  good  faith,  sufi'ered  it  to  accumu- 
late in  his  own,  but  when  decreed  to 
pay  it  over,  at  the  end  of  his  adminis- 
tration, no  per  centage  was  allowed 
him;  Wriyht  v.  Wright,  2  M'Cord, 
Ch.  196.  And  in  the  recent  case  of 
Briggs  v.  Holcombe,  3  Kichardson, 


Eq.  16,  the  ten  per  cent,  commis- 
sion was  declared  to  be  limited  to  cases 
where  the  money  was  made  an  annu- 
ally-accumulating fund  by  the  exe- 
cutor, and  not  to  apply  to  one  where 
a  simple  balance  was  found  to  be  due 
by  him,  in  which  case  he  was  only 
entitled  to  two  and  a-half  per  cent, 
for  receiving,  and  the  same  for  paying 
it  away. 

The  preceding  rules  have  been  ap- 
plied to  trustees  and  receivers ;  Bona 
V.  Davanf,  Riley,  Ch.  Cas,  44 ;  with 
the  exception  of  the  necessity  of  mak- 
ing annual  returns,  the  neglect  to  do 
which,  will  not  cause  a  forfeitui'e  of 
compensation,  unless  it  appear  that 
the  estate  has  sufi'ered  from  the  ne- 
glect ;  Mucken/oss  v.  Heath,  1  Hill, 
Ch.  184.  They  do  not,  however,  apply 
to  cases  where  the  trustees  have  ex- 
pressly agreed  to  act  without  commis- 
sions; 31^  Caw  V.  Blunt,  2  M'Cord, 
Eq.  90 ;  Vestri/  and  Wardens  v. 
Barksdale,  1  Strobh.  Eq.  197  ;  nor 
to  commissioners  in  equity,  whose 
compensation,  regulated  by  a  fee  bill, 
the  court  has  no  power  to  enlarge  or 
modify;  Bona  v.  Davant;  supra. 

In  Georgia,  the  subject  of  compen- 
sation to  executors  and  trustees  is  re- 
gulated by  a  statute  as  old  as  1764, 
(Prince,  Dig.  224 ;  2  Cobb,  Dig.  304,) 
whose  eleventh  section  declares  that 
it  may  be  lawful  for  every  executor 
and  administrator,  guardian  and  trus- 
tee, for  his  care,  trouble,  and  attend- 
ance in  the  execution  of  their  several 
trusts,  to  retain  in  his  hands  a  sum  not 
exceeding  fifty  shillings  for  every  hun- 
dred pounds  which  he  should  there- 
after receive,  except  on  the  appraised 
value  of  any  estate  that  should  come 
into  his  hands ;  and  the  like  sum  of 


4G8        COMMISSIONS     TO     TRUSTEES     AND     EXECUTORS. 


fifty  sliillings  for  every  hundred 
pounds  which  he  should  pay  away 
in  debts,  legacies,  or  otherwise,  (ex- 
cepting also,  the  delivering  up  any 
such  estate  to  the  persons  entitled  to 
the  same,  during  the  course  and  con- 
tinuation of  his  management  or  ad- 
ministration,) and  so  in  proportion 
for  any  sum  less  than  one  hundred 
pounds ;  provided,  that  no  executor, 
&c.,  should,  where  he  had  power  so 
to  do,  for  his  trouble  in  letting  out 
and  lending  any  sum  of  money  upon 
interest  and  again  receiving  the  mo- 
neys so  lent,  be  entitled  to  receive  any 
sum  exceeding  twenty  shillings  for 
every  ten  pounds  for  all  sums  arising  by 
moneys  lent  to  interest  so  to  be  receiv- 
ed, and  in  like  proportion  for  a  larger  or 
lesser  sum ;  and  that  no  executor,  &c., 
who  was,  or  might  be,  a  creditor  of 
any  testator  or  intestate,  or  to  whom 
might  be  left  or  bequeathed,  any  sum 
of  money,  or  other  estate,  should  be 
entitled  to  any  commissions  for  the  pay- 
ment to  themselves,  of  any  such  debts 
or  legacies :  but  as  it  might  be  very 
difficult,  (the  statute  goes  on  to  say,) 
to  ascertain  the  proper  and  adequate 
allowance  to  be  made  in  all  cases,  and 
as  the  sums  thereinbefore  allowed 
might  not  be  sufficient  compensation 
for  the  care,  trouble,  and  pains  which 
executors,  &c.,  might  take  in  some 
particular  cases,  it  was  provided  that 
any  executor  or  trustee  who  should 
have  had  extraordinary  trouble  in  the 
manasement  of  the  estate  and  should 
not  be  satisfied  with  the  sum  there- 
inbefore mentioned,  should  be  at 
liberty  to  bring  an  action  for  his  ser- 
vices, and  the  verdict  and  j,udgment 
thereon  should  be  conclusive;  pro- 
vided, that  no  verdict  should  be  given 


for  more  than  fifty  per  cent,  over  and 
above  the  sums  allowed  by  the  statute. 

A  subsequent  statute,  passed  in 
1792,  provided  that  if  an  executor 
should  neglect  to  render  annual  ac- 
counts to  the  register  of  probates,  he 
should  not  be  entitled  to  any  commis- 
sions for  his  trouble  in  the  manage- 
ment of  the  said  estate.  The  fullest 
efi"ect  was  given  to  this  statute  by  hold- 
ing, (contrary  to  the  construction  put 
upon  a  similar  statute  in  South  Caro- 
lina, Wn'rjht  V.  Wn'ffht,  2  M'Cord, 
Ch.  200,)  that  the  executor  forfeits  not 
only  his  commissions  on  the  returns 
for  the  neglected  year,  but  all  com- 
missions for  his  trouble  in  the  man- 
agement of  the  estate;  Fallv.  Simons, 
6  Georgia,  274 ;  Kenan  v.  Paul,  8  Id. 
417.  In  consequence  of  these  deci- 
sions, the  Act  of  22d  of  February, 
1850,  (2  Cobb,  Dig.  340,)  provided 
that  when,  from  providential  cause, 
any  trustee  should  fail  to  make  re- 
turns by  the  time  specified,  the  court 
might,  by  special  order,  save  him 
from  the  penalty  of  forfeiture  of  com- 
missions by  reason  thereof;  and  that 
if  any  executor,  &c.,  should  fail  to 
make  a  return  within  the  time  re- 
quired by  law,  he  should  not  lose  the 
commissions  on  any  returns  made  in 
due  time. 

In  Loioe  v.  Morris,  13  Georgia, 
169,  it  was  held  that  trustees  had 
not  only  an  inherent  right  to  be  reim- 
bursed all  expenses  properly  incurred 
in  the  execution  of  their  trust,  but 
were,  moreover,  entitled  to  compensa- 
tion for  time  and  services  in  its  man- 
agement, and  that  evidence  in  that 
behalf  ought  to  have  been  received 
by  the  court  below ;  and  in  Burney 
V.  Spear,  17  Id.  225,  it  was  further 


ROBINSON  V.  PETT. 


469 


held  that  although  a  court  of  chan- 
cery would  not,  in  general,  allow  a 
trustee  to  encroach  upon  the  capital 
of  the  trust  estate,  yet  that  in  cases 
where  the  income  was  not  sufficient, 
the  commissions  of  the  trustee  might 
properly  be  paid  out  of  the  corjnis  of 
the  estate. 

In  Alabama,  the  compensation  to 
all  acting  in  a  fiduciary  capacity  has 
formed  a  part  of  the  common  law  of 
that  state;  Spence  v.  WhitaJcer,  3 
Porter,  327;  Phillips  v.  Thompson, 
9  Id.  667;  Bothea  v.  31' Coll,  5  Ala. 
314;  Carrol  v.  Moore,  7  Id.  617; 
Benford  v.  Daniels,  13  Id.  673. 
It  was  said  by  Goldthwaite,  J.,  in 
Harris  v.  Martin,  9  Id.  899,  "It 
is  the  usual  and  common  practice  to 
allow  executors,  administrators,  and 
guardians  a  per  centage  upon  the 
amount  of  the  receipts  and  disburse- 
ments, as  a  compensation  for  the  per- 
formance of  the  trust.  This  per  cen- 
tage has  never  been  fixed  by  statute, 
and  until  some  specific  rule  is  declar- 
ed upon  the  subject,  it  is  evident  each 
case  must  be  governed  by  its  peculiar 
circumstances.  It  is  apparent,  how- 
ever, that  the  quantum  of  trouble  and 
loss  of  time,  is  not  the  only  matter  to 
be  considered  ;  as  the  settlement  of  an 
estate  of  $500  may  involve  as  much 
difficulty  as  one  of  $50,000.  The 
compensation  must  also,  to  a  great  ex- 
tent, be  controlled  by  the  amount  of 
the  estate,"  as  also  by  the  labor  and  re- 
sponsibility incurred;  Gould  v.  Hays, 
25  Ala.  432;  though  in  ordinary  cases, 
five  per  cent,  seems  to  be  thought  the 
usual  allowance ;  Bendell  v.  Bendell, 
24  Id.  306.  But  while  it  is  admitted 
that  the  English  rule  has  never  pre- 
vailed, it  is  said  that  these  allowances 


are  "scrutinized  with  jealous  watch- 
fulness ;"  Harris  v.  Martin,  sup7-a  ; 
though  where  the  fiduciary  has  shown 
lona  fides,  his  commission  and  other 
expenses,  such  as  counsel  fees,  &c.,  are 
willingly  allowed  ;  Harris  v.  Mar-tin, 
sztpra  ;  HearnsY.  Savage,  IQ  Ala.  291; 
unless  he  has  gone  into  unnecessary 
litigation;  Bendell  v.  Bendell,  24  Id. 
306.     Although  it  is  held  that  the 
power  of  the  court  to  compensate  by  a 
per  diem  allowance,  is  unquestioned, 
(Marshall  v.    HAloicay,   2    Stewart, 
453,)  yet  they  lean  strongly  against 
such  a  mode  of  compensation  ;  Magee 
V.  Couperthwait,  10  Ala.  908.     So, 
as  to  specific  charges ;  while  the  right 
to  allow  them  is  recognized,  "  such 
charges  are,  perhaps,  the  exception, 
and   not  the   rule,   and   they  should 
never   be   allowed   for   the   ordinary 
duties  of  an  administrator;"    0' Neil 
V.  Donnell,  9  Alabama,  738.«     See, 
as  to  compensation  to  a  bank  director, 
Alabama  Bank  v.  Collins,  7  Id.  102. 
The  compensation  being  rather  mat- 
ter of  grace  than  of  right,  depends  en- 
tirely upon  the  hona  fides  of  the  trus- 
tee;   O'JSfeil  V.  Donnell;    though  it 
is  not  withheld,  for  the  omission  to 
make  annual  returns,  as  required  by 
the  statute;    Craig  v.  31' Gehee,  16 
Alabama,  48 ;    Gould  v.  Hayes,   19 
Id.  462  ;  or  except  in  case  of  "  wilful 
default  or  gross  negligence;"  Powell 
v.    Poxcell,    10    Id.    914;    Gould  v. 
Hayes;    or   where   the   executor    or 
trustee  refuses  to  account;    Hall  v. 
^Yilson's  Heirs,    14    Ala.    295.      la 
Doneldson  v.  Pusey,  13  Id.  752,  an 
attempt  was  made  to  set  aside  a  vol- 
untary deed  of  trust,  because,  among 
other  grounds,  it  allowed  to  the  trus- 
tee a  commission  of  twelve  and  a-half 
per  cent. ;  but  while  the  court  said 


470    COMMISSIONS  TO  TRUSTEES  AND  EXECUTORS. 


that  the  commission  was  greater  than 
that  usually  allowed,  yet  that  the  trus- 
tee had  "  to  collect  many,  and  perhaps 
small  accounts,  his  duties  embraced  a 
settlement  of  the  aflPairs  of  a  dissi- 
pated and  reckless  man,  whose  busi- 
ness was  doubtless  confused  and  diffi- 
cult to  arrange."  By  the  Act  of  1S41, 
(Clay,  Dig.  p.  228,)  when  by  will,  an 
estate  is  directed  not  to  be  sold,  but 
kept  together  for  distribution  at  a  fu- 
ture day,  the  court  has  power  to  allow 
in  lieu  of  commissions,  such  annual 
compensation  as  shall  be  reasonable, 
regard  being  had  to  the  amount  of 
labor  performed,  responsibility  in- 
volved, and  the  value  of  the  estate ; 
and  this  act  has  been  held  not  to  be 
retrospective  in  its  operation ;  Gould 
V.  Hayes,  supra. 

The  Mississippi  statute,  (Hutch.  & 
How.  ©ig.  p.  414,  §  96,)  like  that  of 
Maryland,  allows  to  executors  such 
compensation  as  shall  be  reasonable 
and  just,  not  less  than  five,  nor  ex- 
ceeding ten  per  cent,  of  the  amount 
of  the  appraised  value;  and  this  does 
not  mean  solely  on  the  amount  of  the 
inventory,  but  on  the  whole  estate ; 
Merrill  v.  Moore,  7  Howard,  292; 
Cherry  v.  Jarratt,  3  Cushman,  221 ; 
including  the  real  estate,  when  its 
proceeds  pass  through  their  hands; 
and  the  allowance  is  made  only  on  the 
final  settlement;  Shurtleff\.  Wifher- 
spoon,  1  Smedes  &  Marshall,  622; 
and  where  an  executor  resigns  his 
trust  before  his  administration  is  com- 
pleted, it  is  in  the  discretion  of 
the  Probate  Court  to  make  such  al- 
lowance as  it  may  deem  proper; 
Cherry  v.  Jarratt,  supra.  "  This 
allowance,  left  discretionary  with 
the  Court  of  Probates,  between  the 


extremes  indicated,  is  intended  to 
cover  all  their  compensation.  Within 
this  limit  it  may  be  made  to  vary  ac- 
cording to  circumstances.  Out  of  it, 
they  must  pay  their  own  expenses  and 
fees  of  counsel  for  advice,  touching 
their  duty  in  the  conduct  and  manage- 
ment of  the  estate.  But  if  there 
should  be  suits  for  or  against  the  es- 
tate, which  make  it  necessary  to  em- 
ploy counsel,  those  fees  must  be  paid 
by  the  estate.  But  when  counsel  are 
employed  to  give  advice  as  to  the  cor- 
rect course  of  duty  of  the  executor  or 
administrator,  the  fees  must  be  paid 
by  him  individually  out  of  his  own 
compensation.  If  he  have  not  the 
requisite  knowledge  to  discharge  the 
duties  of  the  office  he  undertakes,  he 
must  pay  for  its  acquisition  himself. 
His  commissions  are  intended  to  cover 
all  the  charges  he  is  authorized  to 
make  against  the  estate  in  the  course 
of  administration ;"  Satterwhite  v. 
Litth'field,  13  Smedes  &  Marsh.  306. 
In  the  later  case,  however,  of  Shirley 
V.  Shattuck,  6  Cushman,  26,  it  seems 
to  have  been  thought,  that  where  a 
trustee  was  also  an  attorney,  although  it 
was  his  duty  to  protect  the  interests  in- 
trusted to  him,  "  he  was  not  compelled 
to  go  beyond  the  usual  course  required 
of  any  faithful  and  prudent  man,  and 
bestow  his  extraordinary  labors,  such 
as  were  appropriate  to  a  particular 
professional  class,  to  the  business  com- 
mitted to  him  only  as  a  private  indi- 
vidual  We  think,  therefore, 

that  the  sound  and  just  rule  is,  that 
although  compensation  may  be  allowed 
to  a  trustee  who  performs  such  ser- 
vices for  the  estate  in  his  hands,  as  an 
attorney  or  solicitor,  yet  that  it  should 
never  be  allowed,  unless  it  be  shown 
clearly  and    beyond  doubt    that  the 


ROBINSON     V.     PETT. 


471 


legal  proceedings  were  undertaken  and 
conducted  in  good  faith,  with  an  eye 
single  to  the  best  interests  of  the  es- 
tate, and  were  necessary  to  protect  its 
rights,  and  such  as  a  discreet  and  judi- 
cious man  would  have  instituted  in  a 
matter  of  his  own  individual  interest. 
It  would  of  course  be  a  strong  justifi- 
cation of  such  services,  that  they  were 
rendered  at  the  instance  of  the  cestui 
que  trust." 

In  Tennessee,  the  Acts  of  1715, 
and  1789,  allowed  an  executor  to  re- 
tain no  more  than  his  necessary  charges 
and  disbursements,  and  the  construc- 
tion put  upon  these  statutes  was  very 
strict.  Although  the  reasonable  costs 
of  bringing  or  defending  necessary 
suits  were  allowed,  yet  no  travelling 
expenses  were  given,  or  compensation 
made  for  lost  time;  Stejjhenson  v. 
Stephenson,  3  Hayw.  123  ;  Bryant  v. 
Puckett,  lb.  255 ;  Stephenson  v. 
Yandle,  5  Id.  261 ;  but  the  Act  of 
27th  January,  1838,  taken,  in  sub- 
stance, from  one  passed  in  1822,  al- 
lows to  executors,  administrators,  and 
guardians,  '^  a  reasonable  compensa- 
tion for  their  services." 

In  Kentucky,  some  reluctance  seems 
to  have  been  felt  in  departing  from 
the  English  rule.  "  The  doctrine  is 
incontrovertibly  settled,"  it  was  said 
in  Breckenridye  v.  Broohs,  2  A.  K. 
Marshall,  339,  "that  where  a  mort- 
gagee or  other  trustee,  manages  the 
estate  himself,  there  is  no  allowance 
to  be  made  for  his  trouble."  So  in 
M-Mullen  V.  Scott,  2  Monroe,  151,  it 
was  held  that  a  stipulation  by  a  ti'ustee 
for  the  payment  of  his  expenses, 
(though  he  would  have  been  entitled 
to  these  without  any  such  stipulation,) 


excluded  any  claim  for  personal  servi- 
ces. With  respect  to  executors,  this 
strictness  was  altered  by  statute,  (1 
Morehead  &  Brown's  Dig.  GG8,)  which 
gave  to  them  their  reasonable  charges 
and  disbursements  expended  in  the 
funeral  of  the  deceased,  and  other  their 
administration;  and  in  extraordinary 
cases,  such  recompense  for  their  per- 
sonal trouble  as  the  court  should  deem 
reasonable.  In  Logan's  Administra- 
tor V.  Troutman,  3  A.  K.  Marshall, 
67,  an  allowance  of  five  per  cent,  was 
said  to  be,  "  no  more  than  according 
to  the  rules  of  law  and  the  universal 
custom  of  the  country,  it  was  proper 
to  allow."  This  per  centage  was  re- 
cognized in  Ramsey  v.  Ramsey,  4 
Monroe,  152 ;  Wood  v.  Lee,  5  Id. 
66;  M'Cracken  v.  MOracken,  6  Id. 
342  ;  Wehh  v.  Wehh,  lb.  167  ;  though 
in  Wood  v.  Lee,  it  was  added,  ''  in 
some  cases  seven  and  a-half,  and  in 
others  ten  per  cent,  has  been  allowed. 
But  a  gross  sum  in  other  cases  has 
been  allowed  without  regard  to  any 
per  centum,  aud  in  others  a  daily  al- 
lowance, or  special  charge  has  been 
pa.ssed;"  but  in  Bowling  v.  Cohh,  6 
B.  Monroe,  358,  a  charge  of  seven 
per  cent,  upon  receipts,  and  the  same 
on  the  payments,  was  said  to  be  ex- 
cessive and  unusual.  A  liberal  spirit 
seems  to  be  shown  towards  the  allow- 
ances of  expenses,  such  as  hire  of 
slaves;  Floyd  v.  Floyd,  7  Id.  292, 
counsel  fees,  &c. ;  Bowling  v.  Cohh. 
In  the  case  of  Hite  v.  Hite,  1  B. 
Monroe,  179,  it  would  seem  that  these 
principles  had  not  been  extended  to 
trustees,  as  "  the  general  rule,  that  a 
trustee  is  not  entitled  to  compensation 
for  personal  services  in  managing  trust 
funds,"  is  quoted,  though  it  is  admit- 
ted that  there  are  exceptions  to  this 


472         COMMISSIONS     TO     TRUSTEES     AND     EXECUTORS. 


rule  in  modern  adjudications.  But  in 
PhilUpA  V.  Bustard,  1  B.  Monroe,  350, 
the  English  rule  was  said  to  be  exten- 
sively qualified  if  not  entii'ely  explod- 
ed by  the  local  law  and  usage  of  that 
state,  where  tutors,  curators,  execu- 
tors, and  administrators  were  all  en- 
titled to  reasonable  compensation,  and 
there  was  no  reason  for  applying  so 
harsh  and  unreasonable  a  rule  to  the 
solitary  class  of  cases  denominated  ex- 
press technical  trusts,  and  in  the  re- 
cent case  of  Laiie  v.  Coleman,  8 
B.  Monroe,  571,  a  party  acting  as 
asent,  under  an  instrument  which 
directed  him  to  pay  from  the  proceeds 
of  certain  law  suits,  all  costs  and  ex- 
penses, including  attorney's  fees,  and 
which  was  held  to  be  in  ciFect  a  deed 
of  trust,  was  declared  to  be  entitled 
to  a  "reasonable  compensation  for 
his  services."  And  in  Banh  of  The 
United  States  v.  Hirst,  4  B.  Mon- 
roe, 430,  the  reservation  in  an  assign- 
ment made  to  three  trustees,  of  one 
per  cent,  commission  on  collections 
and  disbursements,  not  to  exceed 
$2000  to  each  of  them  in  any  one 
year,  was  held  not  to  be  so  extrava- 
gant as  to  indicate  a  fraudulent  mo- 
tive in  the  assignment;  while  in 
Greening  v.  Fox,  12  B.  Monroe,  190, 
it  was  held  that  trustees  under  a  deed 
for  the  support  of  the  grantor  and  his 
wife,  were  entitled  to  five  per  cent, 
commission  on  the  amounts  transfer- 
red to  them. 

In  Ohio,  the  Act  of  1840  (ch.  208, 
§  175,  Kirwin's  Digest,  G07,)  provi- 
ded that  executors  and  administrators 
might  be  allowed  a  commission  upon 
the  amount  of  the  personal  estate  col- 
lected and  accounted  for  by  thcni,  and 
of  the  proceeds  of  the  real  estate  sold 


under  an  order  of  court  for  the  pay- 
ment of  debts,  which  should  be  in 
full  compensation  for  all  their  ordi- 
nary services ;  that  is  to  say,  for  the 
first  SIOOO,  at  the  rate  of  six  per  cent. ; 
for  all  above  that  sum,  and  not  ex- 
ceeding S5000,  at  the  rate  of  four  per 
cent.;  and  for  all  above  ^5000,  at  the 
rate  of  two  per  cent. ;  and  that  in  all 
cases  such  further  allowances  should 
be  made  as  the  court  should  consider 
just  and  reasonable  for  their  actual 
and  necessary  expenses,  and  for  any 
extraordinary  services,  not  required  of 
an  executor  in  the  common  course  of 
his  duty;  with  a  proviso  that  when 
provision  should  be  made  by  will  for 
compensation,  the  same  should  be 
deemed  a  full  satisfaction  for  his  ser- 
vices, in  lieu  of  his  commissions,  or 
his  share  thereof,  unless  he  should,  in 
writing,  renounce  all  claim  to  such 
compensation.  In  Andreios  v.  An- 
drcws,  7  Ohio  State  Reports,  151,  the 
Supreme  Court  held,  upon  the  autho- 
rity of  the  Pennsylvania  cases  cited 
svjn-a,  p.  445,  that  an  executor  was  not 
bound  to  maintain  the  will  of  his  tes- 
tator, but  should  properly  throw  the  ex- 
pense of  the  same  upon  the  legatees 
or  devisees;  and  in  Gilbert  v.  Sutllff, 
3  Id.  149,  it  seems  to  have  been 
thought  that  a  trustee  was  not  "  en- 
titled to  compensation  in  the  absence 
of  an  agreement  to  pay;  he  may  claim 
for  expenses,  but  he  must  render  his 
account,  and,  if  not  admitted,  must 
clearly  establish  it;  if  he  mal-admin- 
ister  and  refuse  to  account,  both  com- 
pensation and  expenses  may  be  re- 
fused." 

The  revised  statutes  of  Illinois 
(March  3d,  1845,  §  36,  2  Rev.  St. 
1219,)   provide   that   executors   and 


ASHBURNER     V.     MACGUIRE. 


473 


administrators  shall  be  allowed,  as  a 
compensation  for  their  trouble,  a  sum 
not  exceeding  six  per  cent,  on  the 
•whole  amount  of  personal  estate,  and 
not  exceeding  throe  per  cent,  on  the 
money  arising  from  the  sales  or  let- 
ting of  land,  with  such  additional 
allowances  for  costs  and  charges  in 
collecting  and  defending  the  claims 
of  the  estate,  and  disposing  of  the 
same,  as  shall  be  reasonable. 

In  Missouri,  the  statute  (sect.  15  of 
art.  6,  of  Ex'ors  and  Adm'rs,)  allows 
an  amount  not  exceeding  six  per  cent. 
on  the  whole  amount  of  personal  es- 
tate and  money  arising  from  the  sale 
of  land,  but  the  compensation  is  some- 
times awarded  in  a  gross  sum ;  Fisher 
V.  Smart,  7  Missouri,  581. 

Although  it  will  have  been  seen 
that  in  a  few  states,  the  principle  of 
compensating  those  acting  in  a  fidu- 
ciary capacity  does  not,  as  yet,  seem 
to  have  been  applied  further  than  in 
the  case  of  executors  and  administra- 
tors, yet  it  will  sufiiciently  appear  from 
observing  its  rapid  extension,  that  as 
to  the  principle  itself,  there  will  soon 
be  little  difference  of  determination ; 


and  some  of  the  rules  which  appear 
from  the  above  cases  to  be  of  genera 
application,  in  the  absence  of  statu- 
tory provisions  to  a  contrary  effect,  are 
that  one  who  assumes  a  trust  with  the 
understanding,  express  or  implied, 
that  its  duties  are  to  be  performed 
without  compensation,  shall  not  be 
allowed  afterwards  to  claim  it — that 
compensation  is  to  be  given  for  labor 
and  risk  actually  incurred,  and,  there- 
fore, not  to  be  claimed  on  assuming 
the  trust — that  double  compensation 
is  not  to  be  given  when  the  fiduciary 
occupies  a  double  position  with  regard 
to  the  same  subject-matter — that  the 
compensation  is  not  to  be  increased 
in  proportion  to  the  number  of  trus- 
tees— ^that  in  cases  where  the  fiduciary 
has  been  wanting  in  that  probity  and 
care  which  equity  demands,  it  will  be 
withheld  altogether — and,  consequent- 
ly, that  although  the  cost  of  profes- 
sional services  will,  in  general,  be 
readily  allowed  when  the  protection 
of  the  fiduciary  is  also  the  protection 
of  those  beneficially  interested,  yet  it 
will  not  be  sanctioned  where  the  for- 
mer avails  himself  of  such  services  in 
a  defence  against  the  rights  of  the 
latter. 


SPECIFIC    LEGACIES. ADEMPTION. 


*ASHBURNER  v.  MACGUIRE. 


[*229] 


1'784.     JULY  18,   1786. 
REPORTED   2    BRO.    C.    C.  108. 


Specific  legacf. — Ademption.] — Legacy  of  interest  and  principal  of  a 
hand  is  specific,  and  is  partially  adeemed  hy  the  testator  having  received 
part  of  the  debt  hy  dividends  declared  after  the  bankruptcy  of  the  debtor. 


474  SPECIFIC     LEGACIES.  —  ADEMPTION. 

^^  Legacy  of  my  1000?.  East  India  StocJc,"  is  specific,  and  is  adeemed  in 
toto  hy  the  testator's  selling  the  stock. 

"William  Macguire,  by  his  will,  dated  27tli  September,  1778,  bequeathed, 
(inter  alia,)  as  follows  : — "  Item,  I  bequeath  to  my  sister  Jane  xishburner,  the 
interest  arising  from  her  husband  Williain  Ashhurncr' s  bond  to  me  for  prin- 
ci])((l,  3500A  sterling  during  her  life,  independent  of  her  present  or  any  future 
husband,  amounting  to  175Z.  sterling  per  annum.  Item,  I  bequeath  the  prin- 
cipal of  the  said  bond,  on  the  decease  of  my  said  sister  Jane  Ashburner,  to 
her  four  daughters,  Elizabeth,  Anne,  Sarah,  and  Sophia,  to  be  equally  divided 
among  them  or  the  survivors  of  them.  Item,  I  bequeath  to  Mr.  William 
Beawes,  now  at  school  with  the  Rev.  Mr.  Everett,  at  Felstead,  iu  Essex,  my 
capital  stock  of  1000?.  in  the  India  Company's  Stock,  with  the  dividend 
thereon  arising,  which  dividend  is  to  pay  for  his  education  and  maintenance 
till  he  is  qualified  for  holy  orders,  and  then  the  capital  to  be  laid  out  iu  the 
purchase  of  a  living  for  him  in  the  church.  This  stock  is  to  be  continued  or 
disposed  of,  at  the  discretion  of  my  executors." 

William  Ashburner,  the  debtor,  became  a  bankrupt  in  February,  1780.     In 
March,  the  testator  proved  this  debt  *under  the  commission,  and,  IGtli 
L  "^     J   May,  1781,  received  a  dividend  thereon  of  4s.  Bd.  in  the  pound. 

The  testator  died  12th  July,  1781.  Since  his  death,  another  dividend  of 
2s.  dd.  has  been  made  to  the  bankrupt's  creditors. 

The  testator,  at  the  time  of  making  his  will,  was  possessed  of  1000?.  East 
India  Stock,  and  no  more,  but  sold  out  the  whole  of  it  before  his  death. 
Beawes,  the  legatee  of  this  stock,  was  a  natural  child  of  the  testator. 

The  bill  was  brought  by  Mrs.  Ashburner,  her  four  daughters,  and  Beawes, 
to  have  the  whole  sum  of  3500?.  secured  for  Mrs.  Ashburner  and  her  daugh- 
ters, and  to  have  such  part  of  it  as  is  due  out  of  the  estate  of  Ashburner  the 
bankrupt  paid  by  his  assignee,  and  the  residue  paid  by  the  personal  estate  of 
the  testator  out  of  his  general  effects  ;  and  that  the  personal  representative  of 
the  testator  might  also  purchase  with  the  testator's  personal  estate  1000?.  East 
India  Stock,  and  transfer  the  same  for  the  use  of  the  plaintiff  Beawes,  as  di- 
rected by  the  will.  The  defendants,  the  administratrix  and  residuary  legatees, 
insisted  that  the  plaintiffs  the  Ashburners,  were  entitled  only  to  what  remained 
due  to  the  testator  at  the  time  of  his  death  out  of  the  estate  of  the  bankrupt ; 
and  that  the  legacy  of  East  India  Stock  to  Beawes  was  adeemed  by  the  testa- 
tor's disposing  of  it  in  his  lifetime. 

The  cause  was  heard  before  the  Lord  Chancellor  in  1784,  and  on  the  18th 
of  July,  1786,  he  gave  judgment. 

Lord  Chancellor  Tuurloay,  after  stating  the  case,  said — The  claim  of 
Mrs.  Ashburner  and  her  daughters  depended  on  two  questions  : 

First,  whether  the  bond  was  given  as  a  specific  legacy ;  which  depends  on 
this,  whether  the  manner  in  which  the  sum  is  mentioned,  turns  it  to  a  pecu- 
niary legacy,  or,  as  the  civilians  call  it,  a  demonstrative  legacy,  that  is,  a  legacy 


ASHBURNER     V.     MACGUIRE.  475 

in  its  nature  a  general  legacy,  but  where  a  particular  fund  is  pointed  out  to 
satisfy  it;  or  whether  it  be  what  they  call  a  legatum  nominis,  or  legatum 
debiti. 

*The  second  question  is,  whether  the  legacy,  supposing  it  to  be  rsjcQo-n 
specific,  is  adeemed,  so  far  as  the  testator  has  received  dividends  in 
respect  of  the  debt,  or,  as  the  bankrupt's  estate  may  be  insufficient  to  pay  the 
residue. 

I  will  take  the  second  point  first ;  for  this  is  clearly  a  specific  legacy  accord- 
ing to  all  the  definitions.  Wherever  a  debt,  or  a  part  of  a  debt,  is  the  subject 
bequeathed,  it  is  legatum  nominis,  or  legatum  debiti.  I  shall  not  stand  long 
upon  that  point. 

With  respect  to  the  second  point,  as  to  the  ademption,  one  maxim  has  gained 
so  much  ground  as  to  have  been  a  governing  rule,  as  has  been  recognized  by 
Lord  Talbot  and  Lord  Hardwicke.  It  is,  that  where  a  debt  is  bequeathed, 
and  is  afterwards  extinguished  by  the  act  or  concurrence  of  the  testator,  as  by 
demand  or  suit,  the  legacy  is  adeemed,  but  if  paid  in  without  suit  or  demand, 
there  is  no  intention  to  adeem ;  and  there  are  innumerable  authorities  that  a 
legacy  of  a  debt  is  not  adeemed  by  a  voluntary  payment.  Lord  Camden,  in 
the  Attorney- General  \.  HarMn,^  expressly  exploded  this  distinction;  so  did 
Lord  Macclesfield.^  I  am  inclined  to  adopt  their  opinions,  because  I  can  find 
no  ground  for  the  distinction  but  a  passage  in  Swinb.  sect.  20,  p.  7,  (p.  548, 
6th  edit.)  But  I  doubt  if  the  authors  cited  by  him  support  him.  Grodolphin, 
(Orphan's  Leg.,  4th  edit.  434,)  referring  to  the  same  books,  states  the  rule 
diff"erently;  and  so  have  other  writers. 

By  the  civil  law,  it  was  competent  for  a  man,  after  he  had  changed  the 
subject-matter  of  a  specific  legacy,  to  declare,  by  his  conduct,  that  such  a 
change  was  no  ademption.  The  case  put  is  of  a  gold  chain,  which  the  testa- 
tor, after  having  bequeathed  it  by  his  will,  converts  into  a  cup ;  the  legacy  is 
not  adeemed,  because  the  cup  might  be  restored  to  its  former  shape. 

This  has  not  been  adopted  by  our  law.  There  is  no  ground  to  say,  that, 
after  a  legacy  is  extinguished,  a  man,  by  his  conduct,  may  revive  it.  It  is 
contrary  to  common  sense,  as  appears  by  the  instance  put.  The  gold  chain 
may  have  been  given  as  a  legacy,  because  it  had  been  *long  in  the  pjt-Qo.^-i 
testator's  family.  If  it  be  afterwards  converted  into  a  gold  cup,  the 
reason  for  giving  it  ceased. 

There  is  an  exception,  or  limitation  to  this  rule,  where  the  testator  alters 
the  form,  so  as  to  alter  the  specification  of  the  subject;  as  by  making  wool 
into  cloth,  or  a  piece  of  cloth  into  a  garment :  there  the  legacy  is  adeemed, 
because  the  subject-matter  cannot  be  restored  to  its  former  state. 

This  distinction  is  intelligible,  in  an  action  where  the  thing  sued  for  cannot 
be  recovered  in  specie ;  but  it  is  not  intelligible,  when  applied  to  a  legacy ; 
and,  what  is  more  material,  never  was  adopted  by  our  law. 

As  to  legacies  of  debts,  according  to  the  civil  law,  where  the  testator  had 

1  Amb.  566.  2  Lord  Thomond  v.  Earl  of  Sufifolk,  1  P.  Wms.  461. 


476  SPECIFIC     LEGACIES. — ADEMPTION. 

sued  for,  but  had  not  recovered,  or  had  got  judgment,  but  not  execution,  or 
had  actually  recovered  the  debt,  but  had  set  the  money  apart  for  the  legatee, 
or,  by  words,  declared  he  did  not  intend  to  revoke  the  legacy;  in  none  of 
these  cases  was  the  legacy  adeemed.  But  there  is  no  authority  in  the  civil 
law  for  the  distinction  between  a  debt  being  paid  without  demand,  and  in 
consequence  of  a  demand. 

Besides,  although  it  can  be  ascertained  where  a  suit  was  commenced  for  a 
debt,  it  may  be  extremely  difl&cult  to  ascertain  whether  any  demand  has  been 
made ;  if  the  testator  receive  payment  of  the  debt,  the  legacy  is  gone,  unless 
it  appear  from  the  manner  of  his  disposing  of  the  money  afterwards,  that  he 
means  to  preserve  it  for  the  legatee.  Lord  Camden,  in  the  Attorney- General 
v.  Purhin,  held  there  was  no  distinction  between  voluntary  payment,  and 
payment  on  a  demand,  and  that  in  both  cases  the  legacy  was  extinguished; 
he  added,  that  where  the  sum  is  specified  in  the  bequest,  it  is  a  general  legacy, 
as  I  shall  mention  on  the  other  point.  But  the  distinction  between,  I  be- 
queath^ the  500Z.  due  on  a  bond  from  A.  B.,  and  I  bequeath  the  bond  from 
A.  B.,  is  very  slender;  and  so  admitted  to  be  by  his  Lordship. 

In  the  civil  law  there  is  a  distinction  taken  between  a  demonstrative  legacy, 
where  the  testator  gives  a  general  legacy,  but  points  out  the  fund  to  satisfy  it, 
and  a  taxative  legacy,  where  he  bequeaths  a  particular  thing. 
r*9^^T  *'0n  the  first  point,  I  am  clear  this  is  a  specific  legacy.  If  the  for- 
tune of  the  testator  had  failed,  so  as  not  to  satisfy  all  the  pecuniary 
legacies,  and  the  question  had  been,  whether  this  legacy  should  have  been 
contributive  to  the  pecuniary  legacies,  I  believe  no  man  in  the  profession 
would  have  doubted. 

When  the  testator  made  his  will,  £5300  was  due  to  him  from  William 
Ashburner,  by  bond;  he  meant  to  relinquish  that  bond  for  the  benefit  of  the 
family;  not  by  way  of  release  to  the  husband,  but  by  way  of  settlement;  and 
that  this  debt,  whether  it  turned  out  well  or  ill,  should  go  to  the  family;  the 
interest  to  his  sister  for  her  life,  the  principal  among  her  daughters.  In  this 
case,  the  bequest  must  be  considered  as  specific,  although  the  sum  be  men- 
tioned; for  I  cannot  agree  to  Lord  Camden  s  distinction. 

As  to  the  legacy  of  East  India  Stock  to  the  plaintiff,  Beawes,  there  is  no 
case  to  countenance  his  claim.  The  testator  says,  "  I  give  mi/  capital  stock 
to"  &c. ;  the  pronoun  my  has  been  relied  on,  in  many  cases,  in  deciding  the 
legacy  to  be  specific. 

The  testator,  after  making  this  will,  sold  his  stock,  which  made  it  as  if  it 
had  never  existed ;  the  Icjacy  is  adeemed,  according  to  all  the  cases. 

In  questions  upon  legacies  of  debts,  the  cases  have  crept  beyond  the  origi- 
nal principle,  which  was  the  distinction  between  demonstrative  and  taxative 
legacies,  and  recourse  has  been  had  to  the  animus  adimcudi,  which  has  nothing 
in  common  with  the  other  principle. 

'  This  distinction  is  recognized  by  Lord  Ilardwicke,  in  Ellis  v.  Walker,  Amb.  310, 
and  by  Lord  Camden  in  Attorney-General  v.  Parkins,  Id.  506,  but  is  now  ovcrtbrown. 


ASHBQRNER     V.     MACGUIKE.  477 

In  Pettiicard  v.  Pctthoard,  Rep.  t.  Fincli,  152,  the  Court  was  of  opinion, 
from'all  the  circumstances,  that  the  testator  intended  to  give  a  legacy  of  £2000, 
although  the  debts  pointed  out  for  the  payment  of  it  amounted  only  to  £1700 ; 
and,  therefore,  decreed  the  deficiency  to  be  made  good  out  of  the  general  as- 
sets. In  Paiolet's  case,  Raym.  335,  the  legacy  was  held  to  be  a  pure  legacy, 
or  a  legacy  in  numeratis,  and  not  legatum  nominis;  and,  although  the  debt 
was  paid  to  the  testator,  the  legacy  was  decreed.  In  Lord  Ca&deton  v.  Lord 
Fanshaw,  1  Eq.  Ca.  Abr.  298,  *a  legacy  of  a  debt  was  held  to  be  spe-  r^,.^oA-\ 
cific,  although  the  sum  was  named. 

In  Orme  v.  Smith,  1  Eq.  Ca.  Abr.  302;  Gilb.  Rep.  82;  and  1  Vern.  681, 
the  payment  was  voluntary;  and,  from  thence,  was  inferred  an  argument,  that 
there  was  no  animus  adimendi.^ 

In  Lord  Thomond  v.  Earl  of  Suffolk,  1  P.  Wms.  461,  Lord  Macclesfield 
disapproved  of  the  distinction  between  a  debt  recovered  by  suit,  or  paid  in 
voluntarily.  A  definition  of  a  specific  legacy  is  given  by  Lord  Macclesfield, 
in  Hinton  v.  Pinke,  1  P.  Wms.  539,  and  the  advantages  and  disadvantages, 
as  between  a  specific  and  pecuniary  legacy,  are  mentioned  ;  and,  among  other 
instances,  that  the  legatee  of  a  debt,  which  is  lost  by  the  insolvency  of  the 
debtor,  shall  have  no  contribution  from  the  other  legatees. 

In  Crochat  v.  Crochat,  2  P.  Wms.  164,  the  testator  bequeathed  the  sum  of 
£550,  which  was  then  in  Mr.  Ellis's  hands;  the  testator,  before  making  his 
will,  had  placed  that  sum  in  the  hands  of  Mr.  Ellis,  and  had  got  his  note  for 
it.  He  had  also,  before  making  his  will,  drawn  several  bills  on  Ellis,  which 
had  reduced  the  sum  to  £430.  It  was  held,  by  the  Master  of  the  Rolls,  that, 
as  the  drafts  were  all  made  before  the  will,  and  as  the  note  for  the  full  sum 
was  still  standing  out,  the  testator  should  be  considered  as  renouncing  the 
payments,  and  that  he  meant  to  give  the  whole  £550  as  a  legacy. 

I  take  it  to  be  clear,  if  a  testator  gives  a  cup,  which  is  in  pawn,  it  is  a  full 
gift,  and  the  executor  must  redeem. 

In  Ford  V.  Fleming,  2  P.  Wms.  469,  and  1  Eq.  Ca.  Abr.  302,  Lord  King 
held,  that  calling  in  the  debt  was  no  ademption,  supposing  himself  bound  by 
the  passage  in  Swinburne,  and  Pawlet's  casc^  How  he  could  be  bound  by 
those  cases  I  cannot  conceive.'  This  case  determines  nothing.  Laicson  v. 
Stitch,  1  Atk.  507,  was  also  cited ;  the  question  arose  on  a  deficiency.  The 
case'  at  the  Rolls,  cited  1  Atk.  508,  is  nonsense,  and  has  often  been  denied. 
The  question  upon  the  legacy  of  the  stock  has  been  determined  uniformly : 
Ashton  V.  Ashton,  Ca.  t.  Talb.  152,  and  3  P.  Wms.  384;  Partridge  r*.>qK-| 
V.  Partridge,  *Ca.  t.  Talb.  226;  Purse  v.  Snaplin,  1  Atk.  414,  does  •-  "  "* 
not  tell  at  all  to  the  purpose.  Avelyn  v.  ^yard,  1  Yes.  420,  is  contrary  to 
many  cases  determined  before,  and  to  one  by  Lord  Hardwicke  himself,  viz., 
Purse  V.  Snaplin^ 

1  See  as  to  the  intention  of  the  testator,  Domat.  torn.  2,  p.  186.  Vide  Coleman^v. 
Coleman,  2  Ves.  jun.  640. 

2  Raym.  335.  3  Philips  v.  Gary;  and  see  Heath  v.  Perry,  3  Atk.  103. 
*  S.  C,  nom.  Pierce  v.  Snaveling,  1  Ves.  425. 


478  SPECIFIC     LEGACIES. — ADEMPTION. 

Lord  Camden,  in  the  Attorney- General  v.  Parkin,^  decided  one  point,  and 
left  the  other  open.     Parkin,  in  his  will,  recites  that  he  had  certain  mort- 

saces,  to  the  amount  of  £ ,  and  bonds  to  the  amount  of  £ .     He 

gives  all  these,  by  such  enumeration,  to  Pembroke  College,  Cambridge.  To 
his  sisters,  who  were  next  of  kin,  he  gave  annuities,  and  declared  they  should 
have  nothing  more  under  his  will.  Several  sums  were  afterwards  called  in, 
or  paid  before  the  testator's  death.  Lord  Camden  determined,  that  the  sisters 
were  not  disappointed  by  the  declaration,  that  they  should  have  nothing  but 
the  annuities ;  he  held  the  legacy  to  the  College  was  not  adeemed  as  to  the 
sums  paid  in,  upon  the  ground  that  the  sum  was  named,  which  he  at  the  same 
time  admitted  to  be  slight.  The  testator  certainly  meant  to  give  everything 
to  the  College,  except  the  annuities ;  but  the  bequest  is  in  the  strictest  form 
of  a  specific  legacy. 

In  ^Cartwright  v.  Carticriyht,  18th  July,  1775,  before  Lord  Bathurst,  the 
bequest  was,  *' I  give  l-lOO/.,/^  loltich  1  have  sold  my  estate  this  day,"  &c. 
The  testator  afterwards  received  the  whole  money,  paid  it  to  his  banker,  and 
drew  out  of  his  hands  1100/.  of  that  money.  Lord  Bathurst  held  this  to  be  a 
legacy  of  quantity,  and  that  the  receiving  was  no  ademption,  on  the  authority 
of  the  Attorney- General  v.  Parkins ;  but  it  is  questionable  whether  that  case 
supports  that  determination. 

In  the  case  before  me,  the  testator  plainly  intended  that  his  sister,  Sarah 
Ashburner,  and  her  children,  should  have  the  debt,  owing  to  him  by  her  hus- 
band, secured  as  a  provision  for  them. 

My  decree  will  be,  that  the  bond  be  delivered  up  to  the  wife  and  children 
that  they  may  receive  the  dividend  not  received  by  the  testator,  and  whatso- 
ever may  hereafter  *be  payable  out  of  the  bankrupt's  estate  in  respect 
l*-^^]  of  that  debt. 

The  legacy  to  Beawes  is  gone,  and  the  bill  must  be  wholly  dismissed  as  to 
that  claim. 


The  case  of  Ashhurner  v.  Macgxdre,  determined  by  Lord  Thurlow,  after 
great  consideration — for,  according  to  Lord  Alvanley,  (see  4  Ves.  566,)  he 
took  two  years  before  he  gave  judgment — is  usually  referred  to  as  an  authority 
wherever  the  question  arises,  whether  a  legacy  is  general  or  specific,  and  if 
specific,  what  amounts  to  an  ademption  of  it.  See  Stanley  v.  Potter,  2  Cox, 
182 ;    Chaworlh  v.  Beech,  4  Ves.  565,  566 ;  Inncs  v.  Johnson,  4  Ves.  574. 

Legacies  are  usually  said  to  be  of  two  difi"erent  kinds,  general  or  specific ; 
a  third,  however,  may  be  added,  in  some  degree  partaking  of  the  properties  of 
the  two  former, — a  demonstrative  legacy. 

A  legacy  is  general  where  it  does  not  amount  to  a  bequest  of  any  particular 
thing  or  money,  distinguished  from  all  others  of  the  same  kind.     Thus,  if  a 

»  Arab.  506. 

2  Stated  in  the  Appendix  to  Mr.  Wooddeson'a  3d  vol.  of  Views  of  the  Laws  of  England. 


ASHBURNER     V.     MACGUIRE.  479 

testator  gives  A.  a  diamond  ring,  or  a  horse,  or  lOOOZ.  stock,  or  1000?.,  not 
referring  to  any  particular  diamond  ring,  horse,  stock,  or  money,  as  distin- 
guished from  others,  these  legacies  vrill  be  general. 

It  may  be  here  mentioned  that  general  pecuniary  legacies  are  bequests  of 
personal  property  "  described  in  a  general  manner"  within  the  meaning  of  the 
27th  section  of  the  Wills  Act,  (1  Vict.  c.  2G,)  where  no  particular  fund  is 
indicated  for  payment,  and  they  will  therefore  be  payable  out  of  personal 
estate,  which  the  testator  has  power  to  appoint  in  any  manner  he  may  think 
proper,  where  there  are  no  assets  of  which  the  testator  was  possessed  as  his 
own  personal  estate,  sufficient  to  pay  the  legacies.  Ilaicthorn  v.  Shedden,  3 
Sm.  &  a.  293 ;  and  see  Spooner's   Trust,  2  Sim.  N.  S.  129. 

A  legacy  is  specific,  legatum  nominis  vel  debiti,  when  it  is  a  bequest  of  a 
particular  thing,  or  sum  of  money,  or  debt,  as  distinguished  from  all  others  of 
the  same  kind.  Thus,  if  a  testator  gives  B.  "  my  diamond  ring,"  "  my  black 
horse,"  "my  1000?.  stock,"  or  ''1000/.  contained  in  a  particular  bag,"  "or 
owing  to  me  by  C,"  in  these  and  like  instances  the  legacies  are  specific. 

A  legacy  is  demonstrative,  when,  as  Lord  Thurlow  observes  in  the  principal 
case,  "  it  is  in  its  nature  a  general  legacy,  but  there  is  a  particular  fund 
pointed  out  to  satisfy  it."  Thus,  if  a  testator  bequeaths  1000?.  out  of  his  Re- 
duced Bank  Three  per  Cents.,  the  legacy  will  not  be  specific,  *but 
demonstrative.  That  this  species  of  legacy  was  recognized  by  the  *-  "  -I 
civil  law,  is  clear.  "  Si  testator  scripserit,  aureos  quadringentos  Pamphilae 
dari  volo,  ita  ut  infra  scriptum  est,  ab  Julio  autore  aureos  tot,  et  in  castris 
quos  habeo  tot,  et  in  numerato  quos  habeo  tot,  et  post  multos  demun  annos 
decesserit  cum  jam  omnes  summge  in  alios  usus  translates  essent,  responsum 
fuit,  Pamphilae  quadringenta  deberi;  quia  vero  similius  est  patremfamih'as 
demonsfrare  potius  haeredibus  voluisse,  unde  aureos  quadringentos  sine  incom- 
modo  rei  familiaris  contrahere  possent,  quam  conditionem  fidei-commisso  inje- 
cisse,  quod  ab  initio  pure  datum  esset." — Voet  ad  Pand.  35,  tit.  1,  sect.  5. 

Though  often  a  matter  of  much  difficulty,  it  is  of  much  importance  accu- 
rately to  distinguish  these  legacies  one  from  the  other,  because,  as  will  be 
hereafter  more  fully  shown,  a  specific  legacy  will  not,  upon  a  deficiency  of 
general  assets  to  pay  debts,  be  obliged  to  abate,  until  after  the  general  legacies 
have  been  exhausted ;  but  at  the  same  time,  a  specific  legatee  is  liable  to  this 
disadvantage,  that  if  the  thing  specifically  given  be  adeemed  by  the  testator 
either  aliening  or  changing  it  into  a  difi'erent  species  of  property,  he  will  not 
be  entitled  to  claim  anything  by  way  of  compensation  out  of  the  general  per- 
sonal estate.  But  with  regard  to  a  demonstrative  legacy,  it  is  so  far  of  the 
nature  of  a  specific  legacy,  that  it  will  not  abate  with  the  general  legacies ; 
and  so  far  of  the  nature  of  a  general  legacy,  that  it  will  not  be  liable  to  ademp- 
tion by  the  alienation  or  non-existence  of  the  property  pointed  out  as  the 
primary  means  of  paying  it. 

Before,  however,  entering  upon  these  topics,  it  may  be  more  useful  to  ex- 
amine some  of  the  cases  in  which  the  distinguishing  marks  of  these  difi'erent 
kinds  of  legacies  have  been  discussed,  bearing  in  mind,  that,  because  of  the 


480  SPECIFIC     LEGACIES.  —  ADEMPTION. 

consequences,  the  Court  is  inclined  not  to  construe  a  legacy  as  specific,  unless 
clearly  so  intended  :  Klrhy  v.  Potter,  4  Ves.  752  ;  Lines  v.  Johnson,  4  Ves. 
568;  Webster  \.  Hale,  8  Ves.  413;  Ellis  v.  Walker,  Amb.  310;  Sai/er  v. 
Sayer,  7  Hare,  382. 

Legacies  of  money. — A  bequest  of  a  sum  of  money  in  such  a  bag,  {Laivson 
V.  Stitch,  1  Atk.  508,)  or  in  the  hands  of  a  certain  person,  (LLinton  v.  Pinke, 
1  P.  Wms.  540 ;  Crockat  v.  Crockat,  2  P.  "Wms.  164 ;  Puls/ord  v.  Hunter, 
3  Bro.  C.  C.  416,)  or  even  of  "  all  my  moneys,"  (^Manning  v.  Purcell,  2  Sm. 
&  G.  284 ;  7  De  G.  Mac.  &  G.  55 ;  Lamer  v.  Lamer,  26  L.  J.  N.  S.  (Ch.) 
668,)  is  specific.  So  where  one  partner  bequeathed  to  the  other  2000^., 
which  appeared  to  be  due  to  him  on  the  last  settlement,  upon  certain  trusts, 
if  he  did  not  draw  it  out  of  the  trade  before  he  died.  Lord  Hardwicke  held 
that  it  was  a  ^specific  legacy  :  Ellis  v.   Walker.  Amb.  310.     But  a 

"^  -•  bequest  of  money  for  a  ring,  (^Aioreece  v.  Apreece,  1  V.  &  B.  364,)  or 
to  purchase  government  securities,  {Laivson  v.  Stitch,  1  Atk.  507  ;  Gibbons 
V.  Hills,  1  Dick.  324 ;  Edwards  v.  Hall,  11  Hare,  23,)  or  lands,  {Hinton  v. 
Pinke,  1  P.  Wms.  539,)  or  of  an  annuity  to  be  purchased  out  of  or  charged 
on  the  personal  estate,  (^Alton  v.  Medlicot,  cited  2  Ves.  417;  S.  C,  3  Atk. 
694 ;  Hume  v.  Edioards,  3  Atk.  693 ;  Creed  v.  Creed,  11  C.  &  F.  508,)  or 
of  so  much  money  "  to  be  paid  in  cash,"  (^Richards  v.  Richards,  9  Price, 
226,)  is  a  general  legacy.  So,  ''  in  Kirkpatrick  v.  Kirkjmtrick,  before  Lord 
Kenyon  when  Master  of  the  Rolls,  legacies  were  given  to  persons  in  India, 
and  legacies  to  persons  in  England,  to  be  respectively  out  of  the  efiPects  in  the 
respective  countries,  that  was  held  to  be  only  a  direction  as  to  the  payment, 
not  to  make  them  specific,"  cited  Roberts  v.  Pocock,  4  Ves.  158.  So,  a  gift 
of  a  legacy,  with  a  direction  that  it  shall  be  paid  as  soon  as  the  testator's  pro- 
perty in  India  shall  be  realized  in  England,  will  not  make  it  specific,  nor  would 
it  fail  although  the  assets  had  been  remitted  to  England  in  the  lifetime  of  the 
testator:  Sadler  v.  Turner,  8  Ves.  617,  624;  and  see  Raymond  v.  Brodbelt, 
5  Ves.  199. 

Legacies  of  debts.'] — A  debt  may  be  specifically  bequeathed,  either  by  a 
gift  of  the  security,  as  "  my  East  India  bonds,"  {Sleech  v.  Thorington,  2 
Ves.  562,  563;)  ''my  note  of  500^.,"  {DrinkwaterY.  Falconer,  2  Ves.  623;) 
"  my  navy  bills,"  {Pitt  v.  Camelford,  3  Bro.  C.  C.  160 ;)  or  by  a  gift  of  the 
sum  owing  upon  the  security,  as  a  bequest  of  "  the  money  due  on  an  interest 
note  given  by  A.,"  {Fryer  v.  Morris,  9  Ves.  360;)  or  "  due  on  A.'s  bond," 
{Davies  v.  Morgan,  1  Beav.  405;)  "the  money  now  owing  to  me  from  A.," 
{Ellis  v.  Wcdker,  Ambl.  309 ;)  "  or  the  interest  of  7000/.,  secured  on  mort- 
gage of  an  estate  belonging  to  A.,"  {Gardner  \.  Hatton,  6  Sim.  93.)  In  the 
principal  case,  where  the  testator  bequeathed  to  his  sister  "  the  interest  arising 
from  her  husband's  bond,  due  to  me,  for  principal  3500/.  sterling,"  for  life, 
for  her  separate  use,  amouiftirig  to  175/.  sterling  per  annum,  and  on  the  de- 
cease of  his  sister,  the  principal  of  the  said  bond  to  her  four  daughters,  to  be 
equally  divided  among  them,  Lord  Thurlow  held,  that  the  bond  was  specifi- 
cally given  ;  and  this  decision  has  been  approved  of  and  followed  in  Chaicorth 


ASHBURNER     V.      MACGUIRE.  481 

V.  BeecJi,  4  Yes.  555  ;  Innes  v.  Johnson,  4  Ves.  568 ;  Stanley  v.  Folter,  2 
Cox,  180 ;  sed  vide  Coleman  v.  Cohman,  2  Ves.  jun.  639  So  a  gift  of  a 
part  or  residue  of  a  debt  is  specific,  (Ford  v.  Fleming,  1  Eq.  Ca.  Ab.  302,  pi. 
3  ;  2  P.  Wins.  469 ;  Nelson  v.  Carter,  5  Sim.  530 ;  and  see  Basan  v.  Bran- 
don, *8  Sim.  171.)  But  where  a  leoracy  is  o-iven  out  of  a  debt,  or  of 
money  due  on  a  particular  security,  it  will  be  a  demonstrative  legacy :  L  -^«^'J 
Campbell  v.  Graham,  1  Rass.  &  My.  453. 

Legacies  of  stock,  government  securities,  <&-c.'\ — Stock,  or  government  secu- 
rities, may  be  specifically  bequeathed  where  the  specific  thing  or  corpus  is  as 
in  the  principal  case,  described  as  "  my^'  stock,  (Barton  v.  Coolce,  5  Ves.  461  • 
Choat  V.  Yeats,  1  J.  &  W.  102  ;  Norris  v.  Harrison,  2  Madd.  279,  280.) 
So,  a  legacy  "  of  my  stock,"  or  "  in  my  stock,"  or  "  part  of  my  stock,"  is  a 
specific  gift  of  an  aliquot  part  of  stock  :  Kirhy  v.  Potter,  4  Ves.  750,  per  Lord 
Alvanley.  So,  a  bequest  of  "  all  the  stock  which  I  have  in  the  Three  per  Cents, 
being,  or  about  5000^.,"  is  specific  :  Ilamphreys  v.  Ilumphreys,  2  Cox,  184  • 
Cochran  v.  Cochran,  14  Sim.  343 ;  and  a  bequest  "  of  the  interest  of  the 
whole  of  my  property  in  the  public  funds,"  was  held  a  specific  legacy  of  700?. 
Three  per  Cent.  Eeduced  Annuities,  the  only  property  in  the  public  funds 
which  the  testator  had  :  Hayes  v.  Hayes,  1  Kee.  97.  And  see  Vincent  v. 
JVewcomhc,  1  You.  599 ;  Kampf  v.  Jones,  2  Keen,  756 ;  Shnttleworth  v. 
Greaves,  4  My.  &  Cr.  35. 

Previous  to  the  late  Wills  Act,  a  bequest  of  '*  my  stock,"  "  my  shares,"  or 
any  other  similar  property,  described  in  those  words,  was  held  to  indicate  an 
intention  to  pass  .the  specific  property  only  which  the  testator  might  have 
belonging  to  him  of  the  description  in  question,  at  the  time  of  making  his 
will,  such  a  bequest  therefore  was  specific  and  not  general. 

But  now  since  the  Wills  Act  has  expressly  enacted,  (1  Vict.  c.  26,  s.  24,) 
(and  testators  must  be  taken  to  know  the  Wills  Act,)  that  a  will  shall  be  con- 
strued, with  reference  to  property,  to  speak  and  take  eflfect  as  if  it  had  been 
executed  immediately  before  the  testator's  death,  unless  a  contrary  intention 
app)ears  hy  the  will,  it  requires  some  more  specific  indication  of  such  "  con- 
trary intention"  than  the  mere  circumstance  that  the  testator  has  described 
stock  by  such  words  as  "  my  stock"  or  "  my  shares,"  words  which  although  a 
meaning  could  be  given  to  them  by  reference  to  what  was  the  state  of  things 
at  the  dace  of  the  will,  has  also  a  distinct  meaning  in  reference  to  the  state  of 
things  at  the  date  of  the  testator's  death,  and  might  have  been  left  in  the  will 
for  the  very  purpose  of  passing  property  as  it  existed  at  the  latter  date,  and 
because  the  testator  knew,  that,  by  the  operation  of  the  Wills  Act,  they  would 
pass  that  property.  Thus  in  Goodlad  v.  Burnett,  1  K.  &  J.  341,  where  a 
testator  by  his  will,  dated  in  1850,  made  a  bequest  as  follows  :  <'  I  give  my 
New  Three  and  a  Quarter  per  Cent.  Annuities,"  it  *was  held  by  Sir  r*9^/.-, 
W.  Page  Wood,  Y.  C,  that  the  bequest  comprised  all  the  New  Three  L  "  J 
and  a  Quarter  per  Cents.,  which  she  had  at  her  death,  and  consequently  was 
not  specific.  "  When,"  said  his  Honor,  '<  I  refer  to  a  particular  thing,  such 
as  a  ring  or  a  horse,  and  bequeath  it  as  '  my  ring'  or  '  my  horse,'  it  seems  to 

VOL.  II. — 31 


482  SPECIFIC     LEGACIES. — ADEMPTION". 


me  there  niiglit  be  considerable  diflBeulty  in  saying  that  the  '  contrary  inten- 
tion' to  which  the  act  in  its  24th  section  refers,  docs  not  appear  on  the  face 
of  the  will ;  but  when  a  bequest  is  of  that  which  is  generic, — of  that  which 
may  be  increased  or  diminished,  then  I  apprehend,  the  Wills  Act  requires 
something  more  on  the  face  of  the  will  for  the  purpose  of  indicating  such 
'  contrary  intention'  than  the  mere  circumstance  that  the  subject  of  the 
bequest  is  designated  by  the  pronoun  '  my.'  "  See  also  Cole  v.  Scotf,  1 
Mac.  &  G-.  518  ;  Douglas  v.  Douglas,  Kay,  400. 

Even  before  the  Wills  Act,  the  mere  possession,  by  the  testator,  at  the  date 
of  his  will,  of  stock  or  annuities  of  an  amount  equal  to  or  greater  than  the 
bequest,  where  it  is  made  merely  in  general  terms,  as  of  stocks  or  annuities, 
(Partridge  v.  Partridge,  Ca.  t.  Talb.  226;  Simmons  v.  Vallance,  4  Bro.  C 
C.  345  ;  Webster  v.  JIa/e,  8  Ves.  410  ;  Wilson  v.  Brownsmith,  9  Ves.  180  ; 
Hayes  v.  Hayes,  1  Kee.  97  ;  Johnson  v.  Johnson,  14  Sim.  313  ;)  or  of  stocks 
or  annuities  in  particular  funds,  {Purse  v.  Snaplin,  1  Atk.  415  ;  Bronsdon  v. 
Winter,  Amb.  57  ;  Bishojj  of  Peterhorough  v.  MortJoch,  1  Bro.  C.  C.  505 ; 
Sihlcy  V.  Perry,  7  Yes.  523,  529,  530 ;  Webster  v.  Hale,  8  Ves.  410;)  or  of 
India  bonds,  (Sleech  v.  Thorington,  2  Ves.  562,  563  ;)  or  canal  shares, 
(Rohinson  v.  Addison,  2  Beav.  415;)  will  not,  unless  it  appears  clearly  to  be 
the  testator's  intention  to  refer  to  the  identical  stock,  annuities,  bonds,  or 
shares,  of  which  he  was  possessed,  be  considered  as  specific;  for  it  might  be 
his  intention  that  his  executor  should  purchase  them  out  of  his  general  per- 
sonal estate. 

Although  stock  be  given  in  general  terms,  if  the  testator  directs  a  sale  for 
the  benefit  of  the  legatee,  the  legacy  will  be  specific ;  for  that  direction  would 
not  have  been  given  if  the  testator  intended  the  stock  to  be  purchased  out 
of  his  general  personal  estate  :  Ashton  v.  Ashton,  Ca.  t.  Talb.  152  ;  3  P.  Wms. 
384;   SieecJi  v.  Thorington,  2  Ves.  564;  Simmons  v.   Vallance,  4  Bro.  C.  C. 

348. 

Where  there  is  a  bequest  not  oi part  of  certain  stock,  that  is  to  say,  of  stock 
out  of  stock  (in  which  case  the  legacy,  as  before  shown,  is  specific  as  being 
part  of  a.specific  fund,)  but  of  money  out  of  stock  "  as  of  1000?.  out  of  my 
Beduced  Stock,"  then  the  legacy  will  not  be  specific,  but  demonstrative : 
Kirhy  V.  Potter,  4  Ves.  748 ;  Deane  v.  Teste,  9  Ves.  146,  152  ;  Rogers  v. 
Clarke,  1  C  P.  Coop.  376  ;  Attxcater  v.  Attwater,  18  *Bcav.  330. 
'-  "  x\s  to  this  distinction,  see  Hosking  v.  Nicholls,  1  Y.  &  C.  C  C.  478. 
So  where  a  certain  sum  is  given,  and  the  fund  in  which  it  is  invested  is  de 
scribed  or  pointed  out  merely,  the  legacy  will  be  demonstrative  :  Raymond  v. 
Broadhelt,  5  Ves.  199  ;  Gillaume  v.  Adderley,  15  Ves.  384 ;  Le  Grice  v. 
Finch,  3  Mer.  50 ;  Sparrow  v.  Josselyn,  16  Beav.  135 ;  Thomas  v.  Thomas, 
3  Ir.  Ch.  Rep.  399.  So,  in  Lamhert  v.  Lambert,  11  Ves.  607,  where  the 
bequest  is  "  to  A.,  the  sum  o'f  12,000/.  of  my  funded  property,  to  be  transferred 
iu  his  name,  or  employed  as  it  shall  appear  most  beneficial  to  his  interest,"  it 
was  held  to  be  a  demonstrative  legacy. 

But  the  intention  which  always  governs  in  these  cases  may  show,  that  so 


ASHBURNER     V.     MACGUIRE.  483 

much  of  tlie  identical  stock  was  intended,  in  which  case  the  legacy  will  be 
specific.  Thus,  in  MorJey  v.  Bird.,  3  A^es.  629,  the  testator  directed  A.  to 
pay  to  certain  persons  "  four  hundred  pounds  out  of  seven  now  lying  in  the 
Three  per  Cent.  Consolidated  :"  Lord  Alvanley  held,  that  the  legacy  was 
specific. 

It  seems  (contrary  to  the  opinion  expressed  by  Sir  T.  Plumer  in  Parrot  v. 
Worsfield,  1  J.  &  W.  601,)  that  there  may  be  a  specific  legiicy  of  stock  which 
the  testator  became  possessed  of  after  the  time  of  making  his  will :  Fontaine  v. 
Tyhr,  9  Price,  94  :  Stephenson  v.  Dowson,  3  Beav.  342  ;  Queen's  College  v. 
Sutton,  12  Sim.  521.  And  see  Bethune  v.  Kennedy,  1  My.  &  Cr.  114,  where 
Sir  C.  Pepys  remarks,  ''  that  a  bequest  of  all  that  a  testator  may  possess  in 
the  funds,  would  be  a  specific  bequest  of  all  his  funded  property,  the  rule 
being,  that  a  legacy  is  not  the  less  specific  for  being  general.  And  see 
Eosking  v.  Niclioll,  1  Y.  &  C.  C.  C.  478  ;  Jacques^.  Chambers,  2  Coll.  435; 
Toicnsend  v.  Martin,  7  Hare,  471 ;    Oakes  v.  Oakes,  9  Hare,  666. 

Parol  evidence  of  the  state  and  value  of  a  testator's  funded  property  is 
admissible,  in  order  to  determine  whether  a  legacy  is  specific  or  general.  See 
Attorney- General  v.  Grate,  2  Euss.  k  My.  690,  where  Lord  Eldon  overruled 
the  decision  of  Sir  W.  Grant,  M.  R.,  reported  3  Mer.  316.  And  see  Buys  v. 
Williams,  2  Russ.  &  My.  689.  In  that  case,  a  testatrix  gave  to  A.  and  M. 
"50^.  each  of  Bank  Long  Annuities  now  standing  in  my  name."  At  the 
date  of  the  codicil,  and  at  her  death,  she  possessed  Long  Annuities  sulScient 
to  answer  this  bequest  specifically,  but  not  also  to  satisfy  certain  legacies 
charged  by  the  other  testamentary  papers  upon  the  same  stock.  It  was  held, 
by  Lord  Brougham,  reversing  the  decision  of  Sir  L.  Shadwell,  V.  C,  (re- 
ported 3  Sim.  563,)  that  evidence  as  to  the  state  and  value  of  the  testatrix's 
property  in  the  funds  at  those  respective  times  was  admissible ;  and,  on  the 
eflPect  of  that  evidence,  and  the  language  *of  the  testamentary  papers  r*9j^9-i 
taken  together,  the  bequests  to  A.  and  M.  were  held  not  to  be  specific,  '-'""'-' 
but  pecuniary.  "  To  the  proposition/'  said  his  Lordship,  "  that,  because  the 
words  of  the  will  were  clear  upon  the  face  of  them,  extrinsic  evidence  was  in- 
admissible, it  was  wholly  impossible  to  accede  :  that  being  the  case  of  a  latent 
ambiguity,  the  very  case  which,  according  to  all  the  text  writers,  formed  the 
exception  to  the  general  rule  against  admitting  parol  evidence  to  explain  or 
construe  the  words  of  the  instrument.  It  was  because  the  ambiguity  was  not 
patent,  but  latent ;  that  is  to  say,  discoverable  only  upon  reference  to  the  sub- 
ject-matter upon  which  the  will  purported  to  operate,  that  the  Court  was  jus- 
tified in  resorting  to  extrinsic  evidence  at  all.  It  was  perfectly  true  that  the 
Court  was  not  at  liberty,  in  the  case  of  any  written  instrument,  whether  a  will 
of  real  or  personal  estate,  or  a  deed,  to  introduce  into  the  consideration  of  the 
question  of  construction,  any  matter  furnished  by  extrinsic  evidence  for  the 
purpose  of  giving  a  different  meaning  to  the  words  from  that  which  their  plain 
import  convej-ed.  The  Court  was  not  at  liberty  by  matter  of  fact  to  overrule 
the  construction,  which  was  matter  of  law  arising  on  the  face  of  the  instrument 
itself.     But  that  proposition  was  perfectly  consistent  with  the  admission  of 


484  SPECIFIC     LEGACIES.  —  ADEMPTION. 

evidence  to  explain,  though  not  to  control,  the  language,  to  aid,  though  not 
to  vary  or  alter  the  construction."  And  see  Warren  v.  Postlethwait,  2  Coll. 
IIG,  121 ;  CoUlson  v.  CurUng,  9  C.  &  F.  88;  Innes  v.  Sa>jer,  3  Mac.  &  G. 
606 ;  Horwood  v.  Griffith,  4  De  G.  Mac.  &  G.  700. 

Legacies  connected  tcith  Realty.'] — Every  bequest  of  a  lease  for  years  of 
land,  {Long  v.  Short,  1  P.  AVms.  403,)  or  of  tithes,  (Ritdstone  v.  Anderson, 
2  Vcs.  418  ;  Eorie  v.  Medcraft,  1  Bro.  C.  C.  261,)  or  of  a  rent  out  of  a  term 
of  years,  {Long  v.  Short,  1  P.  Wms.  403,)  is  a  specific  legacy. 

But  if,  instead  of  a  rent  or  annuity,  a  gross  sum  is  given,  payable  out  of  a  term 
or  real  estate,  that  will  be  a  demonstrative  legacy,  and  effect  will  be  given  to 
it,  although  the  particular  security  intended  by  the  testator  happens  to  fail : 
Savile  V.  Blachet,  1  P.  Wms.  778;  Fowler  \.  Willoughby,  2  S.  &  S.  354; 
Livesay  v.  Red/em,  2  Y.  &  C.  Exeh.  Ca.  90 ;  Willox  v.  Rhodes,  2  Buss. 
452  ;    Creed  v.  Creed,  11  C.  &  F.  510 ;    Severs  v.  Severs,  1  Sm.  &  Giff.  400. 

The  proceeds,  however,  to  arise  from  the  sale  of  land  may  be  so  bequeathed 
as  to  render  the  legacy  specific.  Thus,  in  Page  v.  Lecqiingicell,  18  Ves.  463, 
the  testator  devised  an  estate  in  trust  to  sell,  but  not  for  less  than  10,000?,, 
and  pay  several  sums  amountijig  to  7800?.,  and  the  overplus  moneys  arising 
from  the  sale  to  A.  :  Sir*W.  Grant,  M.  R.,  held  that  it  was  a  specific 
'-"'■'  legacy  of  10,000?.,  and  the  sale  producing  less,  the  other  legatees  were 
obliged  to  abate  with  A.     And  see  Diclcin  v.  Edwards,  4  Hare,  273. 

Whether  Bequests  contained  in  a  Residuary  Clause  are  Specific  or  Gene- 
ral.']— The  question,  whether  a  bequest  contained  in  a  residuary  clause  is 
specific  or  general,  is  of  much  importance  where  the  attempt  is  made  to  shift 
the  primary  liability  of  the  personalty  upon  realty.  (See  Ancasfer  v.  Mayer, 
ante,  vol.  1,  p.  505 ;)  and  where  the  personal  estate  comprised  in  such  clause 
consists  of  property  of  a  wasting  nature,  as  long  annuities  and  leaseholds,  is 
given  to  persons  in  succession.  See  JToioe  v.  Larl  of  Dartmouth,  post, 
p.  262. 

Legatee's  Right  of  selection.] — If  a  testator  bequeaths  to  a  legatee  a  given 
number  of  articles,  forming  part  of  a  stock  of  articles  of  the  same  descrip- 
tion ;  as,  for  instance,  if  he  has  twenty  horses  in  his  stable,  and  bequeaths 
six  of  them,  the  legatee  has  the  right  of  selection  :  Jacques  v.  Chambers,  2 
Coll.  435 ;  Richards  v.  Richards,  9  Price,  226 ;  Kennedy  v.  Kennedy,  10 
Hare,  438. 

Ademption  of  Legacies.] — A  general  legacy,  as  it  is  payable  out  of  the 
personal  assets  generally,  will  not,  if  they  are  sufiicient  for  that  purpose,  be 
liable  to  ademption,  except  in  the  case  of  a  legacy  to  a  child  where  a  subse- 
quent portion  is  given  ^y  the  parent  or  person  in  loco  parentis.  As  to  which 
see  note  to  Ex  imrte  Pye,  post,  303. 

The  claims  of  a  specific  legatee  will  be  defeated,  if  the  thing  specifically 
bequeathed  to  him  be  not  in  existence  at  the  time  of  the  testator's  decease ; — 
the  legacy,  to  use  the  common  expression,  is  adeemed.  It  must  not,  how- 
ever, be  supposed  that  the  ademption  of  a  specific  legacy  is  in  principle  in 
any  way  similar  to  the  ademption  of  a  general  legacy  by  a  portion ;  for,  in 


ASHBURNER     V.      MACGUIRE.  485 

the  latter  case,  all  depends  upon  tlie  intention,  either  express  or  presumed,  of 
a  parent  or  one  in  loco  parentis  to  substitute  a  portion  for  a  legacy ;  in  the 
former,  the  intention  of  the  testator  is  immaterial.  According  to  the  rule,  as 
laid  down  by  Lord  Thurlow  in  the  principal  case,  the  question  in  these  cases 
will  be,  whether  the  legacy  be  specific,  and,  if  so,  whether  it  is  in  existence 
at  the  testator's  death.  In  a  subsequent  case.  Lord  Thurlow  again  repeats 
the  rule  laid  down  in  the  principal  case,  in  language  strongly  condemnatory 
of  those  authorities  which  proceeded  upon  the  notion,  that  the  animus  adi- 
mendi  should  be  considered.  "  When,"  said  his  Lordship,  "  the  case  of  Ash- 
burner  V.  Macguire  was  before  me,  I  took  all  the  pains  I  could  to  sift  the 
several  cases  upon  the  subject,  and  *I  could  find  no  certain  rule  to  be 
drawn  from  them  except  this — to  inquire  whether  the  legacy  was  a  L  ^  J 
specific  legacy,  (which  is  generally  the  difiicult  question  in  these  eases,)  and, 
if  specific,  whether  the  thing  remained  at  the  testator's  death;  and  one  must 
consider  it  in  the  same  manner  as  if  a  testator  had  given  a  particular  horse  to 
A.  B. ;  if  that  horse  died  in  the  testator's  lifetime,  or  was  disposed  of  by  him, 
then  there  is  nothing  on  which  the  bequest  can  operate.  The  idea  of.  pro- 
ceeding upon  the  animus  adimendi  has  introduced  a  degree  of  confusion  in 
the  cases,  which  is  inexplicable,  and  I  can  make  out  no  precise  rule  from 

them  upon  that  ground It  will  be  a  safer  and  clearer  way  to  adhere 

to  the  plain  rule  which  I  before  mentioned,  which  is  to  inquire  whether  the 
specific  thing  given  remains  or  not."      Stanley  v.  Potter,  2  Cox,  182.. 

A  specific  legacy  of  goods  at  a  particular  place,  will,  in  general,  be 
adeemed  by  their  removal.  Thus,  in  Green  v.  Symonds,  1  Bro.  C.  C. 
129,  n.,  the  testator  bequeathed  to  C.  all  his  books  at  his  chambers  in  the 
Temple ;  he  afterwards  removed  the  books  into  the  country,  and  it  was  held 
that  the  removal  effected  an  ademption  of  the  legacy.  So,  in  Ileseltine  v. 
Heseltine,  3  Madd.  276,  the  testator  gave  to  his  wife  all  his  household 
goods,  &c.,  goods  and  chattels  whatsoever,  that  should  be  in  and  about  his 
dwelling-houses  in  Doctors'  Commons  and  at  Walthamstow  at  the  time  of  his 
decease ;  and  after  the  making  of  his  will,  the  testator  took  a  house  in  Bed- 
ford-square, and  removed  to  it  the  greater  part  of  the  furniture  from  his  house 
in  Doctor's  Commons,  and  it  was  held  by  Sir  J.  Leach,  not  to  pass  by  the 
will.  "  Probably,"  said  his  Honor,  ''  if  the  testator  had  been  asked  whether 
he  meant  to  give  his  wife  the  furniture  in  Bedford-square^  he  would  have  an- 
swered in  the  affirmative ;  but  a  gift  of  such  furniture  as  should  be  in  his 
house  at  Doctors'  Commons,  and  at  Walthamstow,  at  the  time  of  his  decease, 
cannot  pass  furniture  which,  at  the  time  of  his  decease,  was  in  his  house  in 
Bedford-square."  And  see  Colleton  v.  Garth,  6  Sim.  19  ;  Sjiencer  v.  Spencer, 
21  Beav.  548. 

The  like  result  will  follow  if  the  goods  are  removed  by  an  agent,  with  the 
testator's  approbation  :   Shaftshury  v.  Sha/tshury,  2  Vern.  747. 

A  legacy  of  specific  chattels  will  be  adeemed  upon  their  total  loss  or  de- 
struction during  the  life  of,  or,  at  the  same  time  as  the  death  of  the  testator, 
even  although  they  may  have  been  insured,  and  their  value  recovered  from 


486  SPECIFIC     LEGACIES. — ADEMPTION. 

the  insurers.  See  DurrantY.  Friend,  5  De  G.  &  Sm.  343.  There  a  testator 
gave  specific  chattels  to  a  legatee,  and  the  residue  of  his  estate  and  efifects  to 
his  executors ;  and  having  insured  the  chattels,  he  took  them  with  him  on  an 
.  Indian  voyage.  *The  ship  was  lost  at  sea,  the  goods  perished,  and  the 
L  "^  -I  testator  was  drowned.  The  executors  received  the  moneys  in  which 
the  goods  had  been  insured  from  the  insurers.  In  a  suit  for  the  administra- 
tion of  the  testator's  estate,  it  was  held  by  Sir  James  Parker,  V.  C,  that  the 
testator  and  the  chattels  having  perished  together,  the  legatee  had  no  interest 
in  the  chattels,  and  consequently  not  in  the  insurance  money;  but  that  it 
vested  in  the  executors  as  part  of  the  residuary  estate. 

A  mere  temporary  or  accidental  removal  may  not  amount  to  an  ademption. 
Thus,  in  Land  v.  Dcoai/nes,  4  Bro.  C  C.  537,  a  testator  gave  all  his  plate 
and  liuen  in  his  house  in  S.  (with  the  lease)  to  his  wife.  lie  had  but  one  set 
of  plate  and  linen,  which  was  usually  removed,  with  the  family,  from  house 
to  house.  The  plate  happened  to  be  at  B,,  the  country  house,  at  his  death, 
yet  it  passed  to  the  wife.  So  likewise,  under  a  bequest  of  household  furni- 
ture, pictures,  and  books,  which  might  be  at  the  testator's  decease  in,  upon, 
or  about  his  mansion,  it  has  been  held,  that  pictures  removed  from  the  man- 
sion, and  in  the  hands  of  a  picture-cleaner  to  be  cleaned,  and  books  sent  to 
be  repaired,  passed,  but  not  articles  purchased  for  the  mansion,  and  not  sent 
home  at  the  testator's  decease  :  Lord  Brooke  v.  £'ar?  of  Warioick,  2  Dc  Gr. 
&  Sm.  425;  see  also  Spencer  v.  Spencer,  21  Beav.  548. 

So  it  seems  that  ademption  will  not  take  place  if  the  goods  are  removed  on 
account  of  a  fire.  "  They  should  be  considered,"  says  Lord  Hardwicke,  ''  as 
being  in  the  testator's  house  at  his  death,  and  the  legacy  is  not  defeated  by 
that  accident,"  (Chajwian  v.  Hart,  1  Ves.  271;)  nor  if  they  are  removed 
fraudulently,  to  disappoint  the  legacy,  or  by  a  tortious  act,  unknown  to  the 
testator :   Shaftslmrij  v.  Sha/(shnr>/,  2  Vern.  747,  748,  n.  2. 

A  distinction  has  been  taken  by  Lord  Hardwicke  between  a  legacy  of  goods 
on  board  a  ship  and  in  a  house,  although  he  knew  of  no  case  of  the  kind ;  he 
thought  that  the  bequest  of  goods  on  board  a  ship  must  be  supposed  to  be 
made  in  consideration  of  the  several  contingencies  and  accidents  they  were 
liable  to  ;  and  if  it  should  be  determined,  that  if  by  any  accident  they  should 
not  be  on  board  at  the  testator's  death,  they  should  not  pass,  it  would  defeat 
several  marine  wills.  If  the  goods  were  removed  to  preserve  them,  the  ship 
being  leaky,  or  likely  to  founder ;  or  if  the  testator  was  removed  to  another 
ship  (a  contingency  he  was  subject  to  daily,)  and  he  was  forced  to  obey,  this 
would  not  defeat  the  legacy :  Chapman  v.  Hart,  1  Ves.  273. 

Where  the  words  of  a  bequest  have  not  necessarily  a  reference  to  a  parti- 
cular locality,  the  removal  of  the  articles  comprised  in  the  bequest  to  a  dif- 
ferent place  from  that  which  they  were  in  at  the  *datc  of  the  will,  is 
L  -■*"]  immaterial.  Thus,  ifi  Korris  v.  Korrh,  2  Coll.  719.  Where  a  tes- 
tator bequeathed  to  his  wife  as  follows  :  "  All  my  interest  in  my  house  at 
Lavender  Hill,  tlie  furniture,  books,  pictures,  wines,"  &c.,  &c.  After  the 
date  of  his  will,  the  testator  removed  from  Lavender  Hill  to  Spencer  Lodge, 


AS II  BURNER     V.     MACGUIRE.  487 

1 

takiag  witli  liiiu  furniture,  books,  pictures,  wines,  &c.  He  afterwards  pur- 
chased more  of  these  articles,  and  died  at  Spencer  Lodge.  It  was  held  by 
Sir  J.  L.  Knight  Bruce,  V.  C,  that  his  wife  was  entitled  to  the  furniture, 
books,  pictures,  and  wines  which  he  had  at  the  time  of  his  death.  ^'  There 
may,"  said  his  Honor,  "  be  room  to  suspect  or  conjecture  that  in  using  the 
expressions  the  furniture,  books,  pictures,  wines,  &c.,  &c.,  the  testator  had  in 
his  mind  only  such  effects  within  the  description,  as  were  then,  or  as  at  his 
death  might  be,  in  the  dwelling-house  then  occupied  by  him  ;  especially  when 
their  place  in  the  will  is  observed.  But  the  expressions  themselves  have  not 
necessarily  so  restricted  a  meaning — have  not,  necessarily,  any  local  reference. 
It  would,  I  think,  be  giving  too  much  weight  to  the  use  of  the  definite  article, 
and  the  particular  position  of  the  phrase,  so  to  confine  the  construction.  The 
language  must,  I  conceive,  be  taken  to  have  been  used  generally,  not  with 
regard  to  any  particular  place,  nor  with  regard  only  to  such  '  furniture,  books, 
pictures,  wines,'  &c.,  as  he  had  when  he  made  his  will." 

If  a  debt,  specifically  bequeathed,  be  received  by  the  testator,  it  will  be 
adeemed,  for  tbere  exists  nothing  for  the  will  to  operate  upon  :  Rider  v.  Wager, 

2  P.  Wms.  329,  330,  331;  Blrcli  v.  Baker,  Mos.  373;  Badriclc  v.  Btevem, 

3  Bro.  C.  C.  431;   Stanley  v.  Potter,  2  Cox,  180;  Fryer  v.  Morris,  9  Ves. 
360.     See  also  Barker  v.  Rayner,  5  Madd.  208,  there  a  testator  bequeathed 
two  policies  effected  upon  the  life  of  his  wife,  to  his  executors,  upon  trust  to 
pay  the  premiums  during  the  life  of  his  wife,  and  after  her  death,  after  making 
certain  payments,  to  put  out  the  residue  of  the  money  to  be  received  by  virtue 
of  the  policies  upon  real  or  government  securities,  upon  trust  for  certain  per- 
sons.    The  testator's  wife  having  died  during  his  life,  he  received  the  amount 
of  the  two  policies,  and,  after  paying  thereout  a  sum  to  secure  which  they 
had  been  assigned,  invested  the  residue  in  securities,  upon  which  it  remained 
at  the  time  of  his  death.     Sir  John  Leach,  Y.  C,  held  that  the  legacy  was 
adeemed.     "In  the  case  oi'  Ashhi/rner  v.  3Iacffuire,"  said  his  Honor,  "Lord 
Thurlow  entered  very  fully  into  the  consideration  of  all  the  cases  which  are 
to  be  found  upon  this  subject.     And  in  that  case,  and  still  more  unequivo- 
cally in  the  case  of  Stanley  v.  Potter,  in  Mr.  Cox's  Reports,  he  altogether 
repudiated  the  ^principle  of  the  animus  adimendi,  as  tendino;  to  in- 
explicable  confusion ;  and  held,  that  when  it  was  once  determined    •-  ~     J 
that  the  legacy  of  the  debt  was  specific,  and  not  demonstrative,  that  the  only 
safe  and  clear  way  was  to  adhere  to  the  plain  rule — that  there  is  an  end  of 
a  specific  gift,  if  the  specific  thing  do  not  exist  at  the  testator's  death.     It 
may  be  questionable,  from  the  cases  of  Coleman  v.  Coleman,  (2  Ves.  jun. 
639,)  and  Roberts  v.  Pocock,   (4   Yes.  150,)   whether  Lord  Rosslyn   fully 
adopted  the  principle  of  Lord  Thurlow ;  but  the  cases  of  Fryer  v.  3Iorris, 
(9  Yes.  300,)  and  Le  Grice  v.  Fijich,  (3  Mer.  51,)  before  Sir  W.  Grant,  ap- 
pear to  me  to  manifest,   by  necessary  inference,   that   that    learned   judge 
considered  the  law  to  be  so  settled.     Taking  it,  therefore,  as  an  established 
principle,  that,  in  the  case   of  a  specific  gift,  the   Court  is  only  to  inquire 
whether  the  specific  thing  remains  at  the  death  of  the  testator,  and  cannot 


488  SPECIFIC     LEGACIES. — ADEMPTION. 

enter  into  the  consideration,  whetber  it  lias  or  not  ceased  to  exist  by  an 
intention  to  adeem  on  the  part  of  the  testator,  it  necessarily  follows,  that, 
in  the  present  case,  I  am  bound  to  declare,  that  the  legacies  of  the  policies 
of  insurance,  being  a  specific  gift,  has  altogether  failed,  by  the  non-existence 
of  the  policies  at  the  death  of  the  testator."  This  decision,  on  appeal,  was 
affirmed  by  Lord  Eldon,  2  Kuss.  122. 

In  Gardner  v.  Button,  6  Sim.  93,  the  testator  bequeathed  £7000,  secured 
on  mortgage  of  an  estate  at  W.,  belonging  to  R.  T.  The  £7000  and  interest 
were  received  after  the  date  of  the  will  by  the  testator's  agent,  on  his  account, 
and  immediately  afterwards  £0000,  part  of  it,  was  invested  on  another  mort- 
gat^e,  and  tke  remainder  was  paid  into  a  bank  in  which  the  testator  had  no 
other  moneys,  but  was  afterwards  drawn  out  by  a  person  to  whom  the  testator 
had  given  a  cheque  for  the  amount.  It  was  held  by  Sir  L.  Shadwell,  V.  C, 
that  the  legacy  was  specific,  and  notwithstanding  the  £6000  remained  due 
on  the  second  mortgage  at  the  testator's  death,  that  the  legacy  was  wholly 
adeemed.  "  My  opinion,"  said  his  Honor,  ''is,  that  when  the  testator  received 
the  whole  of  the  debt,  there  was  an  end  of  the  subject,  and,  consequently, 
that  this  is  a  clear  case  of  ademption."  See,  also,  Phillips  v.  Turner,  17 
Beav.  194;  Sidehotham  \.  Watson,  11  Hare,  170;  Gale  Y.Gale,  21  Beav.  349. 
The  principles,  therefore,  laid  down  by  Lord  Thurlow,  being  clearly  estab- 
lished we  may  consider  that  the  distinction  taken  in  some  of  the  older  deci- 
sions, (see  Orme  v.  Smith,  1  Eq.  Ca.  Ab.  230,  pi.  2;  2  Vern.  68 1 ;  Partridge 
V.  Partridge,  Ca.  t.  Talb.  228 ;  Crockat  v.  Crockat,  2  P.  Wms.  165 ;  Rider 
v.  Wager,  2  P.  Wms.  330 ;  Earl  of  Thomond  v.  Earl  *of  Suffolk,  1 
[*248]  p  -^Tjj^g  4(34  .  Dfinhcater  v.  Falconer,  2  Ves.  624 ;  Ford  v.  Fleming, 
2  P.  "Wms.  469  ;  Ashton  v.  Ashton,  3  P.  Wms.  385  ;  Ilamhling  v.  Lister,  X.\\\h. 
402,)  viz.  between  a  voluntary  and  compulsory  payment  of  a  debt  to  the  tes- 
tator, and  the  argument  which  prevailed,  that  in  the  former  case  it  might  be 
presumed  there  was  no  animus  adimendi,  is  no  longer  of  any  weight. 

A  partial  receipt  of  a  debt  will,  as  was  held  by  Lord  Thurlow,  in  the  prin- 
cipal case,  only  be  an  ademption  pro  tanto. 

Under  particular  circumstances  the  receipt  of  a  debt  has  not  been  held  to 
amount  to  an  ademption.  Thus,  in  Crockat  v.  Crockat,  2  P.  Wms.  164,  the 
testator,  who  had  placed  in  a  goldsmith's  hands  £550,  for  which  he  had  taken 
a  note  payable  to  him  or  order,  by  his  will  gave  to  his  sister  the  sum  of  £550 
which  was  then  in  the  hands  of  the  goldsmith.  The  testator  had,  hefore 
makin"  his  will,  drawn  some  bills  on  the  goldsmith,  for  several  small  sums  of 
money,  which,  in  all,  had  reduced  the  £550  to  £430.  Sir  Joseph  Jekyll, 
M.  R.,  held,  that  the  legacy  was  not  partially  adeemed.  "These  payments 
out  of  the  £550  in  the  hands  of  Mr.  Ellis  having  been  all  ordered  by  the 
testator  hefore  the  making  of  his  will,  this  cannot  be  said  to  be  an  ademption 
of  the  legacy,  but  is  an  cxpi»ess  indication  of  the  testator's  intention,  that  as 
the  note  for  the  full  sum  of  £550  was  still  standing  out,  notwithstanding  he 
had  ordered  the  payment  in  of  part  of  the  note,  yet  he  renounced  all  those 
payments,  and  willed  that  the  whole  £550  .should  be  the  legacy  which  he  gave  to 


ASHBURNER     V.     M  ACQUIRE.  489 

liis  sister."  In  Graves  v.  Hughes,  4  Madd.  381,  the  testatrix,  by  a  codicil 
to  her  will,  bequeathed  to  W.  H.  and  M.  H.  an  arrear  of  interest  due  on  a 
mortgage,  amounting  to  £600,  as  she  computed  the  same.  After  making  the 
codicil,  she  lived  eleven  years,  and  received  interest  from  the  mortgagor,  to 
the  amount  of  £648.  On  a  reference  to  the  Master,  he  found  that  646^.  8s.  3(7. 
was  due  to  the  testatrix  for  interest  when  she  made  her  codicil,  and  that  a 
sum  to  that  amount  was  due  to  her  for  interest  when  she  died ;  and,  upon  an 
affidavit  he  found  that  the  interest  received  by  the  testatrix  after  the  making 
of  the  codicil  v:as  so  received  in  respect  of  interest  after  the  making  of  the 
codicil,  leaving  outstanding  the  arrear  of  interest  due  when  she  made  the 
codicil.  Sir  J.  Leach,  V.  C,  held,  that  the  legacy  was  not  adeemed  by  the 
receipt  of  interest  subsequent  to  the  making  of  the  codicil.  ''Prima  facie," 
said  his  Honor,  "the  money  received  subsequent  to  the  codicil  was  applicable 
in  payment  of  the  interest  which  first  became  due;  but  the  testatrix  might, 
if  she  chose,  apply  the  money  in  discharge  of  the  interest  which  accrued  due 
subsequent  to  the  *making  of  the  codicil,  and  leave  the  interest  due 
when  she  made  her  codicil,  as  an  outstanding  debt;  and  the  affidavit  L  "  J 
mentioned  in  the  Master's  report  proves  that  fact,  and  is  admissible  as  proof 
of  the  testatrix's  intention  ;"  Earl  of  Thomond  v.  Earl  of  Suffolk,  1  P.  "Wms. 
462,  '^Q4.;Puhford  w.  Hunter,  3  Bro.  C  C  416. 

A  bequest  of  a  debt  may  be  in  its  terms  so  comprehensive  as  to  extend  to 
the  fund  in  its  altered  state  after  it  has  been  received  by  the  testator.  Clark 
V.  Browne,  2  Sm.  &  G.  524. 

The  question  has  arisen,  whether,  a  testator,  who,  having  made  a  specific 
bequest  of  stock,  sells  it,  and  afterwards  purchases  the  same  or  a  less  amount 
of  the  same  stock,  will  thereby  either  wholly  or  partially  revive  the  specific 
bequest.  Lord  Talbot,  in  Partridge  v.  Partridge,  Ca.  t.  Talb.  226,  227,  seems 
to  have  thought  that  he  would.  "All  cases  of  ademption  of  legacies,"  ob- 
served his  Lordship,  "  arise  from  a  supposed  alteration  of  the  intention  of  the 
testator;  and  if  the  selling  out  of  the  stock  is  an  evidence  to  presume  an  altera- 
tion of  such  intention,  surely  his  buying  in  again  is  as  strong  an  evidence  of  his 
intention  that  the  legatee  should  have  it  again."  And  see  Aveling  v.  Ward,  1 
Ves.  426  ;  Drinkwater  v.  Falconer,  2  Ves.  625.  According,  however,  to  the 
rule  laid  down  by  Lord  Thurlow,  in  the  principal  case,  the  intention  of  the  tes- 
tator will  not  be  taken  into  consideration.  The  question  will  be.  Is  the  identical 
stock  bequeathed  by  the  testator  in  existence  ?  And  if  that  question  is  answered, 
as  in  such  case  it  must  be,  in  the  negative,  it  is  presumed  that  the  legacy  is 
adeemed.     See  Pattison  v.  Pattison,  1   My.  &  K.  12. 

Where,  however,  the  thing  specifically  given  has  been  changed  in  name  and 
form  only,  and  is  in  existence  substantially  the  same,  though  in  a  diflFerent 
shape,  at  the  time  of  the  testator's  death,  it  will  not  be  considered  as  adeemed 
by  such  a  nominal  change.  Thus,  if  stock  is  converted  into  a  different  species 
by  Act  of  Parliament,  {Partridge  v.  Partridge,  Ca.  t.  Talb.  226,  228 ;  Brons- 
don  V.  Winter,  Amb.  57,  59,)  or  is  merely  transferred  from  the  names  of 
trustees  into  the  name  of  the  testator,  {Bingicell  v.  AsJcew,  1  Cox^  427;  and 


490  SPECIFIC     LEGACIES. — ADEMPTION. 

see  Amb.  2G0 ;  3  Bro.  C.  C.  416 ;  Moore,  273,  376,)  it  will  not  be  adeemed. 
So,  likewise,  in  the  recent  case  of  Oakes  v.  OaJces,  9  Hare,  666,  where  a  tes- 
tator had  bequeathed  all  his  Great  Western  Railway  shares,  and  all  other  the 
railway  shares  which  he  might  be  possessed  of  at  the  time  of  his  decease  :  it 
was  held  by  Sir  George  Turner,  V.  C,  that  the  bequest  was  not  adeemed,  in 
consequence  of  the  Great  Western  shares  which  the  testator  had  at  the  date  of 
^^  his  will  havino;  been  converted,  by  a  resolution  of  the  company  *under 
•-  ~  -•  the  authority  of  an  Act  of  Parliament,  into  consolidated  stock,  but 
that  consolidated  stock  in  the  same  company,  purchased  by  the  testator  after 
the  date  of  his  will,  did  not  pass  under  the  bequest  of  the  Great  Western  rail- 
way shares  to  the  legatee. 

3Ioreover,  where  stock  specifically  bequeathed  has  been  transferred  by  fraud 
or  practice,  on  purpose  to  disappoint  the  legacy;  or  by  tortious  act,  unknown 
to  the  testator,  {ShaftsUiry  v.  Shaftshiiri/,  2  Vern.  747,  748,  n..  2  ;)  or  with- 
out his  authority,  (Basan  v.  Brandon,  8  Sim.  171 ;)  or  if  he  die  before  the 
authority  given  to  his  agents  to  transfer  be  carried  into  efiect,  {Basan  v.  Bran- 
don, 8  Sim.  171 ;  Harrison  v.  Aslier,  2  De  G.  k  Sm.  436 :)  in  all  these  cases 
there  will  be  no  ademption. 

Where  a  person,  after  making  by  his  will  specific  bequests,  becomes  insane, 
and  other  persons  without  authority  dispose  of  the  things  so  bequeathed,  the 
question  arises  whether  they  will  be  thereby  adeemed.  In  the  case  of  Browne 
V.  Groomhridge,  4  Madd.  495,  a  testator  gave  to  his  wife  all  his  ready  money 
and  bank  notes  which  he  should  have  about  his  person,  or  in  or  about  his 
usual  residence,  at  the  time  of  his  decease.  He  gave  specifically  to  others  all 
his  exchequer  bills  and  stock  standing  in  his  name  at  the  time  of  his  decease. 
The  testator  became  insane,  and  during  his  incapacity  several  large  sums  of 
money  which  were  paid  to  him  were  invested  in  his  behalf  and  in  his  name  in 
the  purchase  of  stock  and  exchequer  bills.  His  wife  died  during  the  testator's 
lifetime,  whereby  her  legacy  lapsed.  It  was  held  by  Sir  John  Leach,  V.  C, 
that  the  specific  legatees  of  the  stock  and  exchequer  bills  were  entitled  to  the 
stock  and  exchequer  bills  so  purchased,  and  that  the  next  of  kin  of  the  hus- 
band did  not  take  them  as  being  ''  ready  money,"  to  which  they  were  entitled 
by  reason  of  the  lapse  of  the  legacy  to  his  wife.  His  Honor  observed,  "  that 
in  the  bequest  to  his  wife  of  the  ready  money  and  bank  notes  which  tes- 
tator should  have  about  his  person,  or  in  or  about  his  usual  residence,  at  the 
time  of  his  decease,  he  could  contemplate  only  the  floating  cash,  which  he 
ordinarily  kept  about  him.  That  it  was  the  duty  of  those  who  managed  the 
testator's  affairs,  during  his  incapacity,  to  act  as  a  provident  owner  would  do, 
and  not  to  have  large  sums  of  money  unemployed.  That  there  was  no  equity 
between  the  legatees;  and  as  between  them  property  didi/  converted  must  be 
taken  in  the  state  and  character  in  which  it  is  found  at  the  death  of  the  tes- 
tator. 

As  a  general  rule,  however,  notwithstanding  the  decision  in  Broicne  v. 
Groomhridfjr,  the  unauthorized  acts  of  parties  will  not  eff"cct  a  conversion  so 


AS  II  BURNER     V.     MACGUIRE.  491 

as  to  disappoint  the  specific  legatees  of  a  *person  who  has  become  r^9-i-| 
insane  after  he  made  his  wilh  See  Taylor  v.  TuyJor,  10  Hare,  475; 
there  a  testator,  who  was  a  shopkeeper,  had  made  a  will,  bequeathing  his  lease- 
hold house  and  shop,  and  stock  in  trade  therein,  to  his  wife,  (subject  to  certain 
trusts,  which  failed,)  and  giving  his  residuary  estate  in  another  manner.  He 
became  insane.  No  commission  in  lunacy  was  taken  out,  but  his  wife  not 
being  disposed  or  competent  to  carry  on  the  trade,  joined  with  the  persons 
whom  he  had  named  executors,  and  also  with  the  residuary  legatees,  in  an 
agreement  for  the  sale  of  the  leasehold  premises  and  stock  in  trade  therein,  for 
a  gross  sum,  to  be  paid  by  instalments.  After  this  agreement  was  made,  and 
possession  of  the  property  delivered  to  the  purchaser,  the  testator  died.  The 
Court,  in  an  administration  suit,  approved  of  the  agreement  as  beneficial  to  the 
estate,  and  directed  it  to  be  carried  into  effect.  It  was  held  by  Sir  W.  Page 
Wood,  V.  C,  that  notwithstanding  the  agreement  for  sale,  and  the  transfer  of 
the  possession  of  the  property  specifically  bequeathed,  none  of  the  parties 
having  any  lawful  authority  to  efi'ect  such  a  sale,  both  the  leasehold  estate  and 
the  stock  in  trade  must  be  taken  as  unconverted  at  the  death  of  the  testator, 
and  passed  to  the  specific  legatee. 

If  a  partner,  under  articles  providing  for  the  renewal  of  the  partnership, 
specifically  bequeath  his  share  of  the  profits,  (naming  the  amount,)  and  upon 
the  expiration  of  the  old,  new  articles  are  entered  into,  by  which  his  share  in 
the  profits  is  altered,  the  legacy  will  not  be  adeemed.  See  BackiocIlY.  Child, 
Amb.  260,  where  Lord  Hardwicke  observed,  "  that  where  a  person  in  trade 
makes  a  provision  out  of  his  share  for  his  family,  and  afterwards  renews  the 
partnership,  by  which,  perhaps,  his  interest  is  varied,  yet  it  is  not  a  revoca- 
tion ;  if  it  were,  it  would  occasion  great  confusion."  And  see  Ellis  v.  Walker, 
Amb.  309. 

Generally,  where  leaseholds  are  specifically  bequeathed,  and  the  testator 
takes  a  new  lease,  the  bequest  will  be  adeemed,  because  the  renewed  lease  is 
a  diflFerent  thing :  the  thing  given  no  longer  exists,  {Ahney  v.  Miller,  2  Atk. 
593  ;  Riuhtone  v.  Anderson,  2  Ves.  418 ;  Hone  v.  Medcraft,  1  Bro.  C.  C. 
261 ;  Slatter  v.  Noton,  16  Ves.  197  ;)  unless,  perhaps,  where  the  legal  estate 
is  in  a  trustee,  (^Carte  v.  Carte,  3  Atk.  174;  S.  C,  Amb.  28;  Ridgw.  Ca.  t. 
Hard.  210 ;  Slatter  v.  Noton,  16  Ves.  201.)  So,  where  a  testator,  after  be- 
queathing leaseholds  by  his  will,  makes  an  assignment  of  them,  upon  other 
trusts,  it  will  amount  to  an  ademption.      Coicper  v.  Mantell,  22  Beav.  223. 

But  as  a  testator  may  undoubtedly  dispose  of  the  future,  as  well  as  his 
present  interest  in  a  chattel  real,  it  is  a  question  of  intention  *what  r^^,~>-o-\ 
the  subject  of  disposition  is, — whether  only  the  interest  which  he  had  L  -^  -'J 
at  the  time  of  executing  the  will,  or  all  the  interest,  though  subsequently 
acquired,  which  he  might  have  at  his  death  in  the  leasehold  premises ;  that 
intention  is  to  be  collected  from  the  words  used  by  the  testator  to  express  it. 
Per  Lord  Eldon,  in  Slatter  v.  Noton,  16  Ves.  109.  And  see  Colegrave  v. 
Hanhy,  6  Madd.  84. 

Where  an  under  lessee  after  his  will  takes  an  assionmcnt  of  the  original 


492  sFECinc    legacies.  —  ademption. 


lease,  it  will  amount  to  an  ademption  of  a  bequest  of  the  under  lease,  (^Porter 
V.  Smith,  IG  Sim.  251,)  but  he  may  by  a  codicil  show  his  intention  of  passing 
his  interest  as  it  existed  at  his  death.  lb. 

And  now,  by  stat.  1  Yict.  c.  26,  s.  23,  it  is  enacted,  "  that  no  conveyance 
or  other  act,  made  or  done  subsequently  to  the  execution  of  a  will  of  or  relating 
to  any  real  or  personal  estate  therein  comprised,  except  an  act  by  which  such 
will  shall  be  revoked  as  aforesaid,  shall  prevent  the  operation  of  the  will  with 
respect  to  such  estate  or  interest  in  such  real  or  personal  estate  as  the  testator 
shall  have  power  to  dispose  of  by  will  at  the  time  of  his  death."  And  by  sect. 
24,  ''  that  every  will  shall  be  construed  with  reference  to  the  real  estate  and 
personal  estate  comprised  in  it,  to  speak  and  take  effect  as  if  it  had  been  exe- 
cuted immediately  before  the  death  of  the  testator,  unless  a  contrary  intention 
shall  appear  by  the  will." 

Where  a  testator,  having  given  a  general  legacy,  by  a  subsequent  instrument 
makes  it  specific,  the  ademption  of  the  specific  legacy  without  more,  will  not 
set  up  the  general  legacy:  Hertford  v.  Lowthcr,  7  Beav.  107. 

A  specific  legacy,  as  is  laid  down  in  the  principal  case,  will  not  be  adeemed 
by  the  testator  pledging  or  pawning  it,  and  the  legatee  will  be  entitled  to  have 
it  redeemed  by  the  executor ;  or  if  he  fail  to  perform  that  duty,  the  legatee  is 
entitled  to  compensation  out  of  the  general  assets,  upon  the  same  principle  as 
the  devisee  of  real  estate  is  entitled  to  the  redemption  of  the  subject  of  a  gift 
out  of  the  general  assets  of  the  testator:  Knight  v.  Davis,  3  My.  &  K.  361. 

The  question  by  no  means  unfrequently  arises  how  far  a  specific  legatee  of 
shares  is  entitled  to  have  calls  paid  out  of  the  testator's  general  estate.  The 
cases  upon  this  subject  have  recently  been  reviewed  by  Sir  John  Romilly,  M. 
R.,  in  his  elaborate  judgment  in  Armstrong  v.  B%crnct,  20  Beav.  424,  437, 
where  it  is  laid  down  as  the  result  of  the  cases,  "  that  where  the  interest  of 
the  testator  in  the  subject-matter  which  he  professes  to  bequeath,  is  complete, 
or  where  it  is  so  treated  and  considered  by  him  and  by  all  persons  unconnected 
■with  it,  as  in  the  case  of  a  share  in  an  insurance  company,  then  the  future 
calls  fall  on  the  *legatee  and  not  on  the  general  personal  estate ;  but 
L  J  where  further  payments  are  required  to  make  perfect  the  interest  which 
the  testator  professes  specifically  to  bequeath,  then  the  general  personal  estate  is 
applicable  for  that  purpose."  See  Blount  v.  Jlipkins,  7  Sim.  43;  Jacques  v. 
Chamhers,  2  Coll.  435 ;  4  Eailw.  Cas.  499  :  CUve  v.  Clive,  Kay,  600 ;  Mar- 
shall v.  Ilolloway,  5  Sim.  196 ;  Wright  v.  Warren,  4  De  G.  &  Sm.  367 ;  Barry 
V.  Harding,  1  J.  &  L.  475 ;  Fitzwilliams  v.  Kelly,  10  Hare,  266 ;  and  sec 
Moffet  v.  Bates,  3  Jur.  N.  S.  200;  26  L.  J.  N.  S.  (Ch.)  465. 

Where  a  testator  had  bequeathed  some  railway  shares,  "  and  all  his  right, 
title,  and  interest  therein,"  it  was  held  by  Lord  Langdale,  M.  R.,  that  moneys 
which  he  had  paid  in  advance  beyond  the  calls,  passed  to  the  legatee  :  Tanner 
V.  Tanner,  11  Beav.  69. 

Where  there  is  a  specific  bequest,  parol  evidence  is  admissible  to  show  what 
property  there  is  answering  to  the  description  of  it;  but  if,  on  that  evidence, 
it  appears  that  there  is  property  correctly  answering  the  description,  no  cvi- 


ASHBURNER     V.     MACGUIRE.  403 

dence  can  be  adduced  to  show  that  it  was  intended  to  apply  to  other  property  : 
Eoricood  V.  Griffith,  4  De  G.  Mac.  &  G.  700. 

A  demonstrative  legacy  is  not  liable  to  ademption,  although  the  fund  out 
of  which  it  is  payable  be  not  in  existence  at  the  death  of  the  testator;  the 
primary  object  is  the  gift  of  the  legacy  :  the  fund  out  of  which  it  is  payable  is 
merely  of  secondary  consideration.  "  Thus,"  as  observed  by  Lord  Maccles- 
field, "  if  a  legacy  was  given  to  J.  S.,  to  be  paid  out  of  such  a  particular  debt, 
and  there  should  not  appear  to  be  any  such  debt,  or  the  fund  fail,  still  the 
legacy  ought  to  be  paid,  and  the  failing  of  the  modus  appointed  for  payment 
should  not  defeat  the  legacy  itself  :"  Savile  v.  BlacJcet,  1  P.  Wms.  777-779  ; 
and  see  Ellis  v.  Walker,  Amb.  310 ;  Chaicorth  v.  Beech,  4  Ves.  565 ;  Gil- 
laume  v.  Adderley,  15  Ves.  384  ;  Smith  v.  Fitzgerald,  3  V.  &  B.  5 ;  Mann  v. 
Copeland,  2  Madd.  223;,  Foioler  v.  Willoughhy,  2  S.  &  S.  354;  ^yillox  v. 
Rhodes,  2  Russ.  452 ;  Campbell  v.  Graham,  1  Russ.  &  My.  453 ;  Creed  v. 
Creed,  11  C.  &  F.  509. 

Where,  however,  a  testator  shows  it  to  be  his  intention  that  a  legatee  is  to 
be  paid  out  of  a  particular  fund  only,  upon  its  failure  he  will  have  no  claim 
upon  the  general  assets  :  Coard  v.  Ilolderness,  22  Beav.  391 ;  and  see  Bristoio 
V.  Bristow,  5  Beav.  289. 

The  confirmation  of  a  will  by  a  codicil  will  not  revive  a  legacy  adeemed  in 
the  interval  between  the  will  and  the  codicil :  Cowper  v.  Mantell,  22  Beav. 
223;  and  see  Montague  v.  Montague,  15  Beav.  565. 

Ahatement  of  Legacies.']^ — As  has  *been  before  shown,  in  the  ad-  ^i^o^^±'\ 
ministration  of  assets,  general  legacies  are  not  applicable  in  payment 
of  debts,  until  after  the  general  personal  estate,  real  estates  devised  for  pay- 
ment of  debts,  real  estates  descended,  and  real  estates  charged  with  payment 
of  debts,  have  been  exhausted;  after  which  general  legacies,  in  priority  of 
specific  legacies,  are  applicable ;  or,  if  the  whole  amount  of  them  is  not 
wanted  for  that  purpose,  they  must  abate  among  themselves  pro  rata :  ante, 
p.  102. 

A  legacy  at  first  sight  appearing  to  be  residuary,  may  be  shown  by  the  tes- 
tator's intention  to  be  specific,  in  which  case  it  will  only  abate  with  other  spe- 
cific legacies.  An  instance  of  this  is  to  be  found  in  the  case  of  Page  v.  Leap- 
ingwell,  18  Ves.  463 ;  there  a  testator  devised  land  upon  trust  to  sell,  but  not 
for  less  than  £10,000,  and  gave  legacies  thereout  amounting  to  £7,800,  and 
"  the  overplus  moneys,"  to  A.  and  B.  The  estate  sold  for  less  than  £7000  : 
Sir  W.  Grant,  M.  R.,  held  that  the  other  legatees  ought  to  abate  equally  with 
A.  and  B.,  his  Honor  being  of  opinion,  that  the  inference  to  be  drawn  from 
the  expressions  in  the  will  was,  that  the  testator  did  not  mean  by  the  word 
"  overplus"  what  it  usually  imports,  viz.,  whatever  shall  turn  out  to  be  the 
overplus;  but  that  he  was  contemplating  a  certain  overplus,  and  was  making 
his  disposition  accordingly.  "I  conceive,"  he  added,  "  the  true  intention  to 
have  been  that  these  persons  should  take  as  specific  legatees;  and,  therefore, 
they  must  abate  among  themselves."  See  also,  Hewitt  v.  George,  18  Beav. 
522 ;  Hunt  v.  BerJcley,  Mose.  47 ;  Laurie  v.  Glutton,  15  Beav.  65. 


494  SPECIFIC     LEGACIES. — ADEMPTION. 


Where,  however,  a  testator  neither  knows,  nor  assumes  to  know,  the  amount 
of  a  fund,  and  after  bequeathing  certain  portions  thereof,  he  makes  a  bequest 
of  the  residue,  the  latter  must  be  applied  first  in  payment  of  debts :  Thus,  in 
Petre  v.  Petre,  14  Beav.  197,  where  a  testator  having  a  power  of  appointment 
by  will  over  £7100  31  per  cents.,  appointed  £5000,  part  of  the  trust  funds  to 
A.  and  £500  to  B.,  and  the  residue  to  his  son.  The  stock  having  upon  the 
appointment  become  liable  in  equity  to  the  payment  of  debts,  it  was  held  by 
Sir  John  Romilly,  M.  11.,  that  the  residue  was  first  applicable  towards  their 
payment.  "  The  authority,"  said  his  Honor,  "  of  Pcuje  v.  Leapingwell,  ap- 
plies where  the  testator  disposes  of  an  estate  which  he  assumes  will  produce  a 
o-iven  sum,  or  with  an  ascertained  fund,  in  which  case  it  is  indifferent,  whether 
after  he  has  given  certain  portions,  he  specifies  the  remainder  by  stating  its 
amount  or  by  comprising  it  under  the  term  '  residue.'  But  in  this  case,  so  far 
from  knowing  the  amount  of  the  fund,  the  testator  could  have  no  conception 
^„rr-|  of  it;  for  it  was  imposaihle  to  ascertain  "^the  amount  until  the  fund 
■-  "  ^  had  been  realized  by  a  sale,  and  the  charges  on  it  known.  If  in  this 
case  it  appeared  that  the  testator  thought  he  was  dealing  with  a  sum  of  £7100 
sterlinij,  and  he  had  divided  it  into  difi"erent  proportions,  the  loss  would  then 
fall  on  all  the  persons  interested  in  proportion  to  their  shares,  although  the 
last  portions  were  called  '  the  residue,'  but  that  is  not  the  case  here."  See, 
also,  Read  v.  Strangways,  14  Beav.  130 ;  Williams  v.  Armstrong,  12  Ir.  Eq. 
Kep.  356;  Vivian  v.  Mortloch,  21  Beav.  252.  And  see  Carter  \.  Taggart,  16 
Sim.  423 ;  Loscombe  v.  Wintringham,  12  Beav.  46 ;  Booth  v.  Alington,  26 
L.  J.,  X.  S.  (Ch.)  138. 

A  question  sometimes  arises  between  pecuniary  and  residuary  legatees, 
where  there  has  been  a  devastavit  by  the  executor,  whether  the  pecuniary 
legatees  ought  not  to  share  the  loss  proportionably  with  the  residuary  legatees. 
The  better  opinion,  in  opposition  to  that  of  Lord  Cowper,  in  Dyose  v.  Dyose, 
1  P.  Wms.  305,  is,  that  they  ought  not.  See  Fonnereau  v.  Poyntz,  1  Bro. 
C.  C.  478;  Humj^hreys  v.  Eumphrei/s,  2  Cox,  184;  Page  v.  Leapingwell,  18 
Ves.  466;  and  Wilmott  v.  Jenlcins,  1  Beav.  401. 

But  the  case  may  be  varied  by  the  dealings  of  the  pecuniary  legatees  with 
the  executor,  as  by  sufTering  their  legacies  to  remain  in  his  hands,  and  re- 
ceiving interest  thereon,  thus  making  him  their  debtor ;  for  then  they  may  be 
considered  to  have  waived  their  priority  under  the  will,  and  will  only  be  enti- 
tled to  have  what  is  left  divided  between  them  and  the  residuary  legatees,  in 
the  proportion  of  the  amount  of  their  legacies,  and  of  the  residue,  as  it  was 
computed  at  the  death  of  the  testator,  with  interest  on  each  :  Ex  parte  Chad- 
win,  3  Swanst.  380.     Sec,  and  consider,  Mallory  v.  French,  11  Ir.  Eq.  Hep. 

376. 

However,  where  a  general  legacy  is  given  for  any  valuable  consideration,  as 
the  relinquishment  of  dower  by  a  widow,  (Burridge  v.  Brudyl,  1  P.  Wms. 
126;  Blower  v.  Morret,  2  Ves.  420;  Davenhill  v.  Fletcher,  Amb.  244  ;  Heath 
y.  Bendy,  1  Russ.  543;  Norcott  v.  Gordon,  14  Sim.  258;.  Stahhchmidt  v. 
Lett,  1  &>n\.  &  G.  421,)  or  of  a  debt  actually  due,  (Bavies  v.  Bush,  1  Younge, 


ASHBURNER     V.      MACGUIRE.  495 

341,)  it  will  be  entitled  to  priority  over  all  other  merely  voluDtary  legacies. 
But  in  Dailies  v.  Bush,  1  Younge,  341,  where  a  testator  had  given  a  legacy 
to  a  person,  on  condition  of  his  executing  a  general  release  of  all  claims  which 
the  legatee  had  on  the  testator,  Lord  Lyndhurst  was  of  opinion,  that,  if  there 
was  not  a  debt  actually  due  to  the  legatee,  he  could  not  be  considered  as  a 
purchaser  of  the  legacy,  so  as  to  avoid  an  abatement  with  the  other  legatees. 
If  no  debt  were  due,  and  the  release  were  required  merely  for  the  sake  of 
peace,  then  unquestionably  the  *legatee  could  not  be  treated  as  a  pur-  r^.^rpT 
chaser.  *-  ~     -^ 

A  bequest  of  an  annuity  to  an  executor  for  his  trouble  in  the  conduct  and 
management  of  the  testator's  affairs,  will  not  be  entitled  to  priority  over  other 
legacies  :  Duncan  v.  Watts,  16  Beav.  204. 

It  may  here  be  remarked,  that  by  the  Dower  Act,  (3  &  4  Will.  4,  c.  105, 
s.  12,)  it  is  expressly  enacted,  "  that  nothing  in  the  Act  contained  shall  inter- 
fere with  any  rule  of  equity,  or  of  any  ecclesiastical  court,  by  which  legacies 
bequeathed  to  widows  in  satisfaction  of  dower  are  entitled  to  priority  over  other 
legacies." 

Where  the  testator's  intention  is  clearly  to  prefer  one  legatee  to  another, 
preference  will  of  course  be  given ;  {Lewhi  v.  Lewin,  2  Ves.  415 ;  Marsh  v. 
Evans,  1  P.  Wms.  668;  Attorney-General  v.  Robins,  2  P.  Wms.  23;  Bees- 
ton  v.  Booth,  4  Madd.  161,  170;  Stammers  v.  HaUHey,  12  Sim.  42;  Brovcn 
V.  Brown,  1  Kee.  275;  Weir\.  Chamley,  1  Ir.  Ch.  Rep.  295;  Spong  v.  Spong, 
3  Bligh,  N.  S.  84;  Sugd.  Prop.  422;  Dyer  v.  Bessonett,  4  Ir.  Ch.  Rep.  382 ;) 
but  not  where  it  is  at  all  doubtful  whether  he  intended  to  give  such  preference. 
See  Bloicer  v.  Morret,  2  Yes.  421 ;  Beeston  v.  Booth,  4  Madd.  161 ;  Eavestaff 
V.  Austin,  19  Beav.  591 ;  and  see  Coore  v.  Todd,  23  Beav.  92. 

Specific  legacies,  as  has  been  shown,  are  not  applicable  in  the  administration 
of  assets  in  payment  of  debts,  until  after  general  legacies  have  been  exhausted, 
(ante,  p.  102,)  nor  are  demonstrative  legacies,  that  is  to  say,  legacies  payable 
out  of  a  particular  fund;  {Roberts  v.  Pocock,  4  Yes.  150;  Lambert  v.  Lam- 
bert, 11  Yes.  607  ;  Acton  v.  Acton,  1  Mer.  178  ;)  and  persons  to  whom  spe- 
cific and  demonstrative  legacies  are  bequeathed,  can  compel  devisees  of  land 
not  charged  with  debt,  to  abate  or  contribute  with  them,  pro  rata,  towards  their 
payment.  See  ante,  p.  102;  Roberts  v.  Pocock,  4  Yes.  160;  Long  v.  Short, 
1  P.  Wms.  403 ;  Tombs  v.  Roch,  2  Coll.  490  ;  and  although  a  specific  legacy 
be  charged  with  debts  and  legacies,  the  general  undisposed-of  residue  will  be 
first  applicable :  Ilewett  v.  Snare,  1  De  Gr.  &  S.  333 ;  ante,  vol.  1,  p.  529. 

Ti77ie  of  Payment  of  Legacies  and  Interest.^ — As  a  general  rule,  interest  is 
payable  on  legacies  from  the  time  when  they  become  actually  due. 

With  regard  to  specific  legacies,  they  are  considered  as  severed  from  the 
bulk  of  the  testator's  property  by  the  operation  of  the  will, /?-owi  the  death  of 
the  testator,  and  are  specifically  appropriated,  with  their  increase  and  emolu- 
ment, for  the  benefit  of  the  legatee  from  that  period ;  so  that  interest  is  com- 
puted on  them  /ro77i  the  death  of  the  testator;  and  it  is  immaterial  whether 


496  SPECIFIC     LEGACIES.  —  ADEMPTION. 


r*o-'-n  t^G  enjoyment  of  the  principal  is  postponed  by  *tlie  testator  or  not; 
*-  "  -^2  Eop.  Leg.  1250,  4th  edit.  Thus,  where  there  is  a  specific  legacy 
of  stock,  the  legatee  will  be  entitled  to  the  dividends  from  the  death  of  the 
testator:  (Barriitffton  v.  Tristram,  6  Ves,  345.  See  also  Ciivev.  Clive,Kaj, 
600,)  although  it  may  have  been  directed  ''  to  be  paid  within  twelve  calendar 
months"  after  the  testator's  decease :  Bristow  v.  Bristow,  5  Beav.  289. 

With  regard  to  general  legacies,  where  the  testator  has  fixed  no  time  for 
their  payment,  {Child  v.  Elsicorthi/,  2  De.  G.  Mac.  &  G.  679,)  they  will  not 
be  payable  until  a  year  after  his  decease  ;  they  will,  therefore,  as  a  general 
rule,  carry  interest  only  from  that  time,  and  it  will  be  due  even  though  the 
payment  of  the  legacy  be  impracticable,  {Wood  v.  Penoyre,  13  Ves.  333, 
334 ;  Gibson  v.  Bott,  7  Ves.  96  ;)  and  whether  the  assets  are  productive  or 
not,  (Pearson  v.  Pearson,  1  S.  &  L.  10.)  So  where  there  is  a  general  legacy 
of  long  annuities,  the  legatee  will  not  be  entitled  to  the  dividends  accruing 
before  the  expiration  of  a  year  from  the  testator's  decease.  CoIIyer  v.  Ash- 
hurner,  2  De.  G.  &  Sm.  404. 

Although  the  testator  directs  legacies  to  be  invested  for  legatees  at  a  period 
beyond  the  expiration  of  one  year  from  his  own  death,  nevertheless,  if  the 
direction  for  investment  is  for  the  convenience  of  the  estate,  interest  will  be 
paid  to  the  legatees  upon  the  legacies,  froai  a  year  after  the  testator's  death, 
if  the  estate  is  sufl&cient  then  to  pay  them  :  see  Varky  v.  Winn,  2  K.  &  J. 
700  J  there  the  testator  after  bequeathing  legacies  of  £2000  to  each  of  his 
daughters  to  be  paid  to  them  four  years  after  his  decease,  the  interest  to  be 
computed  from  the  end  of  on'e  year  after  his  decease,  and  after  giving  a 
further  sum  of  £6000  to  each  of  his  daughters,  added,  "  which  said  sum  of 
£6000  to  each  of  them  shall  be  invested  in  real  or  government  securities  by 
my  executors,  within  seven  years,  to  be  computed  from  the  time  of  my  de- 
cease, in  trust  for  them  or  their  children ;  but  if  any  of  my  said  daughters 
should  die  leaving  no  issue,  then  the  share  or  portion  so  invested  shall  be 
divided  amongst  those  who  have  issue,  share  and  share  alike,  as  they  arrive 
at  the  age  of  twenty-one  years  of  age ;  and  if  only  one,  the  whole  to  go  to  that 
one  only."  It  was  held  by  Sir  W.  Page  Wood,  V.  C,  that  interest  was  pay- 
able on  the  legacies  of  £6000  from  a  year  after  the  testator's  death,  the  estate 
being  sufl&cient  to  pay  them  at  the  testator's  death. 

Where,  however,  the  Court  decrees  a  legacy  to  be  a  satisfaction  for  a  debt, 
{Clark  V.  Sewell,  3  Atk.  99 ;)  or  where  a  person  charges  his  real  estate  with 
the  debts  of  another  man,  (Shirt  v.  Westby,  16  Ves.  898;)  interest  will  be 
given  from  the  death,  not  merely  from  a  year  after  the  death  of  the  testator. 

Where  a  testator  directs  a  legacy  to  be  paid  before  the  expiration  of  twelve 
r*9'^S1  *™o'^t^"^  f^*om  his  death,  interest  will  be  due  from  the  time  when  pay- 
'-  "  -^  mcnt  was  directed  to  be  made.  Lord  Londeshorough  v.  Somerville, 
19  Beav.  295. 

Another  exception  "  is  the  case  of  a  legacy  by  a  father  or  mother  to  a  legi- 
timate child,  whether  by  way  of  portion  or  not.  If  it  is  given  generally,  the 
Court  will  give  interest  from  the  death,  to  create  a  provision  for  its  main- 


ASHBURNER     V.      MACGUIRE.  497 

tenancc,"  {BecJx^ford  v.  Tohin,  1  Yes.  310  ;)  or  where  a  person  puts  himself 
ia  loco  pareatis,  (  Wihon  v.  Maddison,  2  Y.  &  C.  C.  C.  372 ;)  but  the  excep- 
tion is  not  extended  to  an  adult  child,  (^Raven  v.  Waite,  1  Swanst.  553  ;)  nor 
where  the  parent  has  provided  maintenance  for  his  child  though  not  adult  out 
of  another  fund,  (//t  re  Rouse  s  Estate,  9  Hare,  G49  ;  Donovan  v.  Needliavfi, 
9  Beav.  164 ;)  '^  nor  has  the  Court  extended  it  to  a  natural  child,  for  two  rea- 
sons :  first,  from  the  rule  of  law  considering  a  natural  child  as  no  relation, — 
having,  indeed,  no  civil  blood  :  Secondly,  that  it  is  not  fit  for  a  court  of  jus- 
tice to  give  the  same  countenance  to  such  children  as  in  the  case  of  legitimate 
children,"  {Bechford  v.  Tohin,  1  Yes.  310  ;  Lowndes  v.  Lowndes,  15  Yes. 
301 ;)  nor  has  the  exception  been  extended  to  a  wife,  {Loivndes  v.  Loicndes, 
15  Yes.  301 ;  Freema7i  v.  Simpson,  C  Sim.  75  ;  Milltoicn  v.  Trench,  4  C.  &  F. 
276 ;  11  Bligh,  N.  S.  1  y)  but  where  there  was  a  direction  to  apply  a  compe- 
tent part  of  the  interest  on  a  legacy  for  the  maintenance  of  a  natural  child, 
interest  was  held  payable  from  the  testator's  death,  (^Kcicman  v.  Bateson,  3 
Swanst.  689  ;  Duwling  v.  Tjrell,  2  lluss.  &  My.  343.) 

Where  an  annuity  is  given  by  will,  it  will  commence  immediately  from  the 
testator's  death,  and  consequently  the  first  payment  is  at  the  end  of  a  year 
from  his  death  :  Gihmn  v.  Bott,  7  Yes.  96.  But  Lord  Eldon  in  that  case 
takes  a  distinction  between  an  annuity  and  a  legacy  for  life,  for  he  says,  that  '•  if 
a  legacy  is  given  for  life,  with  remainder  over,  no  interest  is  due  till  the  end 
of  two  years.  It  is  only  interest  of  the  legacy,  and  till  the  legacy  is  payable, 
there  is  no  fund  to  produce  interest/'  and  he  considered  it  doubtful  whether 
a  sum  of  money  directed  to  be  placed  out  to  produce  an  annuity,  is  to  be  con- 
sidered as  a  legacy  payable  at  the  end  of  a  year,  or  as  an  annuity  payable  from 
the  death,  see  Gibson  v.  Bott,  7  Yes.  97. 

But  it  seems  that  a  person  having  a  life  interest  in  the  residue  of  personalty, 
is  entitled  to  the  proceeds  from  the  death  of  the  testator ;  or,  if  it  ought  to  be 
converted,  to  such  income  as  it  would  have  produced  if  converted  :  Anger- 
stein  V.  Martin,  T.  &  R.  232  ;  Hewitt  v.  Morris,  T.  &  R.  241 ;  La  Terrier e  v. 
Buhner,  2  Sim.  18  ;  Dimes  v.  Scott,  4  Buss.  195  ;  Douglas  v.  Congreve,  1 
Kee.  410  ;  Caldecott  v.  Caldecott,  1  Y.  &  C.  C.  C.  *322  ;  Taylor  v.  r^fcorni 
Clarke,  Hare,  161 ;  but  see  Taylor  v.  Hihhert,  1  J.  &  W.  308;  L  -^  J 
Stott  V.  HolUngworth,  3  Madd.  161 ;  Griffith  v.  3Jorrison,  1  J.  &  W.  311,  n. ; 
AmphlettY.  Parke,  1  Sim.  275.  See  note  to  Hoioe  v.  Earl  of  Dartmouth,  post, 
p.  262. 

A  gift  for  life,  if  specific,  of  things  ''  quse  ipso  usu  consumuntur,"  is  a  gift 
of  the  property,  and  there  cannot  be  a  limitation  over  after  a  life  interest  in  such 
articles.  Randall  v.  Russell,  3  Mer.  195.  Thus  it  was  laid  down  by  Sir  J. 
L.  Kenyon  Bruce,  Y.  C,  that  a  gift  of  '^  wine,  spirits,  and  hay,"  to  a  woman 
so  long  as  she  should  be  living  unmarried,  is  a  gift  of  the  absolute  interest. 
Andrew  v.  Andrew,  1  Coll.  690,  691,  692. 

The  doctrine  however  relating  to  things  '*  quae  ipso  usu  consumuntur"  it  is 
said  applies  only  to  z personal  use,  exhausting  the  subject  of  the  gift ;  and  it  has 
consequently  been  held  that  it  is  not  applicable  to  a  gift  of  farming  stock  : 
VOL.  II. — 32 


498  SPECIFIC     LEGACIES. — ADEMPTION. 

Groves  V.  Wright,  2  K.  &  J.  347,  351.  If,  however,  consumable  articles  are 
included  in  a  residuary  bequest  for  life,  then  they  must  be  sold,  and  the  in- 
terest only  enjoyed  by  the  tenant  for  life :  Randall  v.  Russell,  3  Mer.  195. 
A.nd  see  Hence  v.  Earl  of  Dartmouth,  post,  p.  262. 

Where  a  legacy  is  charged  on  real  property,  and  no  time  is  fixed  for  its 
payment,  interest  will  be  due  from  the  testator's  death  :  Maxivell  v.  Wettcnhall, 
2  P.  Wms.  2G ;  Stonehoiise  v.  Evelyn,  3  P.  Wms.  254 ;  Simrway  v.  Ghjnn, 
9  Ves.  483. 

Where  the  testator  has  fixed  a  time  for  payment  of  a  legacy,  as,  for  instance, 
on  the  legatee's  attaining  a  certain  age,  according  to  the  general  rule  it  will 
not,  although  it"  be  vested,  carry  interest  until  the  arrival  of  that  time, 
{Heath  V.  Perry,  3  Atk.  101 ;  Tijrell  v.  Tyvell,  4  Ves.  1 ;  and  see  Thomas  v. 
Attorney- General,  2  Y.  &  C.  Exch.  Ca.  525;)  except  where  a  legacy  is  left 
by  a  parent  or  a  person  in  loco  parentis  to  an  infant,  in  which  case,  whether 
the  legacy  be  vested  or  contingent,  interest  on  the  legacy  will  be  allowed  as 
maintenance  from  the  death  of  the  testator,  {Acherley  v.  Wheeler,  1  P.  Wms. 
783  ;  Hill  V.  Hill,  3  V.  &  B.  183 ;  Mills  v.  Roharts,  1  Russ.  &  My.  555 ; 
Leslie  V.  Leslie,  L.  &  Gr.  t.  Sugd.  1 ;  Rogers  y.  Soutten,  2  Kee.  598 ;  Wilson  v. 
Maddison,  2  Y.  &  C.  C.  C.  372 ;  Russell  v.  Dickson,  2  D.  &  War.  133 ; 
Harvey  v.  Harvey,  2  P.  Wms.  21;  Incledon  v.  Northcote,  3  Atk.  438; 
Chamhers  v.  Godwin,  11  Ves.  2  ;  Brown  v.  Temperley,  3  Russ.  263  ;)  or  if 
the  child  be  en  ventre  sa  mere  from  its  birth,  {Rawlins  v.  Rawlins,  2  Cox, 
425;)  and  although  there  be  a  direction  for  accumulation,  {Mole  v.  Mole,  1 
Dick.  310;  3I'Dermoft  v.  Kealy,  3  Russ.  264,  n. ;)  but  whether  the  whole  or 
r*9rrn  P^^'*"  °^  *^®  interest  be  allowed  for  ^maintenance  will  be  at  the  discre- 
^  "         tion  of  the  Court.     [1  American  Leading  Cases,  516,  4th  ed.] 

"  In  the  instance  of  a  child,"  says  Lord  Alvanley,  "  the  Court  does  not 
postpone  the  payment  of  interest  till  a  year  after  the  death  of  the  parent ;  for 
the  Court  considers  the  parent  to  be  under  an  obligation  to  provide,  not  only 
a  future,  but  a  present  maintenance  for  his  child ;  and  therefore  holds,  that 
he  could  have  postponed  the  time  of  payment  only  from  the  incapacity  of  the 
child  to  receive,  but  that  he  never  meant  to  deprive  him  of  the  fruit  of  the 
legacy  ;  which  fruit  is  the  only  maintenance,  and  which  maintenance  he  was 
bound  to  provide :"  CricJcett  v.  Dolby,  3  Ves.  13. 

Where,  however,  a  specific  sum  is  given  for  maintenance,  although  it  be 
less  than  the  interest,  no  more  can  in  general  be  claimed,  {Hearle  v.  Green- 
hank,  3  Atk.  717  ;  Long  v.  Long,  3  Ves.  286,  n. ;)  unless,  perhaps,  it  is 
clearly  insufficient,  and  the  legacy  is  vested,  {Aynsicorth  v.  Rrachett,  13  Ves. 
321;  Turner  v.  Turner,  4  Sim.  430.)  Nor  will  maintenance  be  allowed  out 
of  a  legacy  where  another  fund  is  provided  for  that  purpose.  "  It  is  clear," 
says  Lord  Kenyon,  M.  R.,  "  that  where  other  funds  are  provided  for  the 
maintenance,  then,  if  the  legacy  be  payable  at  a  future  day,  it  shall  not  carry 
interest  until  the  day  of  payment  comes,  as  in  the  case  of  a  legacy  to  a  perfect 
Stranger:"   Wym.h  v.  Wyneh,  1  Cox,  433,  434;    Wally.  Wall,  15  Sim   513; 


ASHBURNER     V.     MACGUIRE.  499 

Donovan  v  Needliam,  9  Beav.  1G4;  Ruilge  v.   Winnall,  12  Beav.  357 ;  In  re 
Rouse's  Estate,  9  Hare,  649. 

The  exception  to  the  general  rule  will  not  be  extended  to  other  relatives 
than  children,  such  as  grandchildren,  or  nephews,  or  nieces,  unless  the  testator 
has  put  himself  in  loco  parentis  :  Houghton  v.  Harrison,  2  Atk,  330  ;  But- 
lev  V.  Freeman,  3  Atk.  58 ;  Descramhes  v.  Tomkins,  4  Bro.  C.  C.  149,  n. ;  1 
Cox,  133 ;  Fcsting  v.  Allen,  5  Hare,  579 ;    Crickett  v.  Dolby,  3  Ves.  10. 

But  as  in  the  case  of  a  parent  or  person  in  loco  parentis,  interest  is  payable 
upon  the  presumed  intention  of  the  testator,  so  it  is  payable  in  the  case  of  a 
future  legacy  given  by  a  person  not  standing  in  that  relation  to  the  legatee, 
if,  from  the  terms  of  the  will,  it  appears  to  have  been  his  intention  that  the 
legatee  should  receive  maintenance  out  of  the  legacy  ;  see  Leslie  v.  Leslie,  L.  & 
G.  t.  Sugd.  1 ;  B'oddy  v.  Daices,  1  Kee.  362.  And  where  a  legacy  is  directed 
to  be  paid  at  a  future  time,  with  interest,  the  interest  will  be  payable  from 
the  end  of  the  year  after  the  testator's  death  :  Knight  v.  Knight,  2  S.  &  S. 
490,  492.     [1  American  Leading  Cases,  516,  4th  ed.] 

The  rate  of  interest,  whether  the  legacy  be  or  not  charged  on  real  estate,  is 
usually  £4  per  cent.,  (  Wood  v.  Bryant,  2  Atk.  523  ;  Treves  v.  Toionshend,  1 
Bro.  C.  C.  386;  8itwell  v.  Bernard,  6  Ves.  *5J:3  ;)  although  the  tes-  r*.7r'i-| 
tator  may  have  resided,  or  had  money  invested  in  a  country  where  a 
higher  rate  of  interest  is  allowed,  (^Malcolm  v.  3Iartin,  3  Bro.  C.  C.  50  ; 
Stapleton  v.  Conway,  1  Ves.  427 ;  Bourke  v.  Ricketts,  10  Ves.  330.)  Lord 
Alvanley  has  observed,  that  the  ground  on  which  the  Court  gives  £4  per 
cent,  interest  in  such  cases  is,  ''  that  the  fund  is  supposed,  in  the  course  of 
the  year,  to  come  into  the  hands  of  the  executor,  and  that  the  executor  can 
make  £4  per  cent,  of  it  here.  If  it  were  made  out,  indeed,  that  the  fund  was 
abroad,  and  greater  interest  made,  it  might  be  otherwise."  (^Malcolm  v.  Mar- 
tin, 3  Bro.  C.  G.  54.)  Unless  compound  interest  be  directed  by  the  will  to 
be  paid  on  legacies,  {Arnold  v.  Arnold,  2  My.  &  K.  365,)  interest  will  be 
computed  on  the  principal,  and  not  on  the  principal  and  interest,  (^Perkyns  v. 
Baynton,  1  Bro.  C.  C.  574;  Crackelt  y.  Bethune,  1  J.  &  W.  586;)  except 
under  particular  circumstances,  as  where  an  executor  neglects  to  obey  an  ex- 
press direction  to  accumulate  :  Raphael  v.  Boelim,  11  Ves.  92 ;  13  Ves. 
590';  DornfordY.  Dornford,  12  Ves.  127. 

Currency  in  which  legacies  are  payahle.'\ — In  the  absence  of  the  intention 
of  the  testator  appearing  upon  the  will,  which  would  of  course  be  complied 
with,  {^Lansdowne  v.  Lansdowne,  2  Bligh,  91,)  it  will  be  presumed  that  a 
testator  intended  legatees  to  be  paid  in  the  currency  of  the  country  in  which 
he  resided,  even  though  he  may  charge  lands  in  another  country  with  their 
payment,  in  which  the  currency  is  different.  See  Saunders  v.  Drake,  2  Atk. 
466;  Pierson  v.  Garnet,  2  Bro.  C.  C.  28;  Malcolm  v.  Martin,  3  Bro.  C.  C. 
50  ;  Lansdowne  v.  Lansdoicne,  2  Bligh,  92  ;  Phipps  v.  Lord  Anglesea,  5  Vin. 
Abr.  208,  pi.  8;  1  P.  Wms.  696;  Wallis  v.  Brightwell,  2  P.  Wms.  88,  89; 
Noel  V.  Rochfort,  10  Bligh,  N.  S.  483 ;  4  C.  &  F.  158.  And  a  legacy  in  a 
foreign  country  and  foreign  coin,  as  of  sicca  rupees,  by  a  will  in  India,  if  paid 


500 


SPECIFIC     LEGACIES.  —  ADEMPTION. 


by  remittance  to  this  country,  the  payment  must  be  according  to  the  current 
value  of  the  rupee  in  India,  without  regard  to  the  exchange  or  the  expense  of 
remittance  :  Cockerell  v.  Barber,  16  Ves.  461 ;  Camjphell  v.  Graham,  1  Russ.  & 
My.  453;  Yates  v.  Maddan,  16  Sim.  613. 


Legacies  of  specific  objects,  or 
classes  of  objects,  showing  an  inten- 
tion, that  the  legatee  should  have  the 
very  thing  bequeathed,  and  not  merely 
a  corresponding  amount  or  value,  are 
specific  legacies.  Such  legacies  have 
an  advantage  over  general  or  pecuni- 
ary legacies,  in  not  being  liable  to 
abatement  for  the  payment  of  debts ; 
Cornish  v.  Wilson,  6  Gill,  301 ;  Chase 
v.  Lockerman,  11  Gill  &  John.  185; 
Nash  v.  Smallwood,  6  Maryland, 
394;  Alexander  v.  Worthington,  5  Id. 
471.  And  they  are  exposed  to  this 
disadvantage,  that  a  change  or  aliena- 
tion of  the  thing  given  will  defeat 
them,  although  the  testator  may  have 
intended  that  they  should  retain  their 
validity;  Cuthhert  v.  Cuthhert,  3 
Yeatcs,486.  Courts  always  lean  against 
construing  legacies  as  specific,  when 
it  is  possible  to  hold  them  general, 
from  the  double  motive  of  protecting 
the  legatees  from  a  loss  of  the  bequest, 
by  a  change  in  the  form  of  the  pro- 
perty bequeathed,  and  of  putting  all 
bequests  on  the  same  footing  as  it  re- 
gards contribution  to  the  payment  of 
debts  ;  Kirhy  v.  Potter,  4  Vesey,  748, 
752;  Smith  v.  Lampton,  8  Dana, 
69;  Tift  V.  Porter,  4  Selden,  516; 
Bell  V.  Hughes,  8  Richardson,  397. 
The  distinction  between  general  and 
specific  legacies  is  suSicientlyobvious, 
although  sometimes  dependent  upon 
minute  differences  of  thought  and  ex- 
pression. Every  bequest  is  specific, 
which  makes  a  special  gift  of  a  parti- 


cular object,  and  cannot  be  satisfied 
by  the  substitution  of  any  thing  else. 
Thus  a  bequest  of  two  yearling 
heifers,  which  in  fact  refers  to  two 
heifers  then  in  the  possession  of  the 
testator,  or  of  the  "furniture  and  pro- 
perty brought  by  my  wife  at  the  time 
of  our  marriage,''  is  specific;  Stickney 
V.  Davis,  16  Pick.  19;  Spencer  v. 
Higgins,  22  Conn.  521;  and  so  is  a 
bequest  of  all  my  stock  which  I  hold 
in  the  Union  Bank ;  Blackstone  v. 
Blackstone,  3  Watts,  335 ;  J^T'  Guire 
V.  Evans,  5  Iredell,  Equity,  269 ; 
Brainerd  v.  Cowdrcy,  16  Conn.  1; 
"  of  the  Cincinnati  five  per  cent,  stock 
now  in  my  possession ;"  Alsop's  Ap- 
l^cal,  9  Barr,  374  ;  or  of  the  dividends 
and  income  of  stock,  in  a  specified 
loan  or  banking  institution,  notwith- 
standing a  direction  that  if  the  stock 
should  be  paid  off",  the  executors  shall 
invest  the  principal  for  the  benefit  of 
the  legatee;  White  v.  Winchester,  6 
Pick.  48;  Cuthhert  v.  Cuthhert,  3 
Yeates,  486;  Manning  v.  Craig,  3 
Green,  Ch.  436 ;  and  every  bequest  of 
stock  or  other  property  which,  by  ex- 
press words  or  necessary  implication, 
refers  to  that  which  the  testator  then 
has,  and  could  not  be  satisfied  by  the 
substitution  of  other  property  of  the 
same  nature;  M^ Guire  v.  Evans,  5 
Iredell,  Eq.  269.  A  bequest  of  a  debt, 
or  of  a  particular  security  for  a  debt, 
is  specific ;  Stout  v.  Hart,  2  Ilalsted, 
414;  Howell  v.  Hook,  4  Iredell,  Eq. 
188;  and  so  is  a  bequest  of  the  pro- 


ASHBURNER     V.     MACGUIRE. 


501 


ceeds  of  a  mortgage;  Gardner  v. 
Printup,  2  Barbour,  S.  C.  83  ;  or  of 
the  money  which  may  be  received 
under  a  decree  or  judgment,  in  a  par- 
ticular suit;  Chase  v.  Loclcerman,  11 
Gill  &  Johnson,  185;  Galhreath  v. 
Winter,  10  Ohio,  64 ;  but  a  bequest 
of  a  sum  payable  out  of  a  debt,  or  se- 
cured by  a  bond  and  mortgage,  is  de- 
monstrative and  not  specific;  Galla- 
gher V.  Gallagher,  6  Watts,  675 ; 
GidtUngs  v.  Seward,  2  Smith's  Court 
of  Appeals  Reps.  365.  A  legacy  of 
money  in  a  bag  or  drawer  will  be  spe- 
cific; but  a  bequest  of  money  gener- 
ally will  not  be  rendered  specific  by  a 
direction,  that  it  shall  not  be  put  out 
at  interest,  and  shall  be  kept  in  gold 
and  silver,  until  the  testator's  children 
come  of  age;  Mathis  v.  Mathis,  3 
Harrison,  59.  Nor  will  a  bequest  of 
*'$850,  now  in  the  possession  of  my 
wife,"  be  specific,  when  the  testator 
goes  on  to  direct  his  executors  to  pay 
her  $150  more,  and  declares  it  to  be 
his  intention  to  give  her  $1000;  En- 
ders  V.  Enders,  2  Barbour,  362.  And 
it  would  seem,  that  in  general,  much 
stronger  evidence  of  intention  will  be 
requisite  to  give  a  specific  character 
to  bequests  of  money,  or  to  any  of  the 
forms  of  currency,  which  are  prima 
facie  pecuniary,  than  to  bequests  of 
things,  which  are  in  their  own  nature 
specific.  Thus  a  bequest  of  ''five 
hundred  dollars  in  bank  notes  of  the 
Bank  of  Kentucky  out  of  moneys  of 
that  description,  now  in  my  hands," 
with  directions  to  invest  it  in  land  for 
the  legatees,  was  held  demonstrative, 
not  specific.  And  the  appropriation, 
by  the  testator,  in  his  life-time,  of  all 
the  bank  notes  of  that  description,  in 
his  hands,  for  the  benefit  of  one  of  his 
legatees,  was  consequently  not  allowed 


to  defeat  the  claim  of  the  others; 
Smith  V.  Lampion,  8  Dana,  69.  A 
bequest  of  "  promissory  notes  out  of 
those  in  my  hands,"  is,  however,  in 
its  own  nature  specific  ;  but  a  bequest 
payable  in  ''  such  notes,  if  the  legatee 
think  fit,"  is  obviously  general ;  Perry 
V.  Maxwell,  2  Dev.  Equity,  488.  A 
bequest  of  such  of  the  testator's  car- 
riages, or  so  much  of  his  furniture  as 
the  legatee  may  choose  to  select,  will 
be  specific,  that  being  certain  which 
is  capable  of  being  reduced  to  cer- 
tainty ;  Wallace  v.  Wallace,  3  Foster, 
149  ;  Everitt  v.  Lane,  2  Iredell,  Eq. 
548. 

Parol  evidence  is  always  admissible 
for  the  purpose  of  connecting  the  will 
of  the  testator,  with  the  subject-matter 
to  which  it  relates,  and  identifying 
the  property  passed  by  his  difi"erent 
devises  or  bequests  ;  Kinsey  v.  Rhem, 
2  Iredell,  192 ;  White  v.  Beattie,  1 
Dev.  Equity,  320 ;  Everett  v.  Lane,  2 
Iredell,  Eq.  548 ;  Spencer  v.  Hig- 
gins,  22  Conn.  521.  An  investigation 
must  necessarily  be  made  on  these 
points  by  every  executor,  in  order  to 
fulfil  the  duties  of  his  office,  and  can 
only  be  reviewed  by  the  court  through 
the  medium  of  parol  evidence.  Such 
evidence  may,  therefore,  be  given  for 
the  purpose  of  showing,  that  a  bequest 
of  two  yearling  heifers,  was  made 
while  the  testator  was  in  expectation 
of  death,  and  related  to  the  cattle  then 
on  his  farm,  and  not  to  yearling  cattle 
to  be  purchased  after  his  death  by  his 
executor,  and  given  to  the  legatee; 
Sfickney  v.  Davis,  16  Pick.  18.  So 
where  a  testator  bequeathed  all  the 
money  which  he  had,  parol  evidence 
was  admitted  that  he  had  but  thirty 
dollars  in  cash,  and  had  just  sold  the 
real  estate  forming  the   bulk  of  his 


502 


SFECIFIC     LEGACIES. 


•ADEMPTION. 


property,  and  taken  promissory  notes 
for  the  price,  for  tlie  purpose  of  show- 
ing in  connection  with  the  general 
scope  of  the  will,  that  the  bequest  of 
the  money  referred  to  these  notes; 
3Iorton  V.  Perri/,  1  Metcalf,  44G. 
And  where  the  testator  recited,  that 
he  had  given  one  thousand  dollars  by 
note  to  his  son,  and  the  note,  when 
produced,  proved  to  be  invalid  for 
want  of  consideration,  though  given 
as  an  advancement,  the  clause  was 
construed  as  a  present  pecuniary  legacy 
of  SIOOO;  Loring  v.  Sumner,  23 
Pick.  98. 

Nor  are  these  decisions  necessarily 
inconsistent  with  that  of  Maim  v. 
3Iann,  1  Johnson,  Ch.  231;  1-i  John- 
son, 1,  where  it  was  held  by  the  chan- 
cellor, and  again  by  the  court  of 
errors,  that  the  declarations  of  the  tes- 
tator could  not  be  given  in  evidence, 
for  the  purpose  of  showing  that  a  be- 
quest of  money  included  promissory 
notes  and  mortgages,  for  there  the  at- 
tempt was  to  enlarge  and  vary  the 
meaning,  not  to  show  that  the  words 
of  the  bequest  would  fail  of  effect,  if 
understood  in  their  primary  sense, 
and  that  they  should,  therefore,  be  un- 
derstood as  having  a  secondary  and 
less  usual  signification.  Courts  are 
bound  to  apply  each  clause  of  the  will, 
to  that  part  of  the  testator's  property 
to  which  it  is  most  applicable,  and  must 
give  effect  to  his  intentions  as  apparent 
upon  a  comparison  of  his  will  with 
the  estate,  of  which  it  professes  to  be 
a  disposition  ;  Goddard  v.  War/no;  1 
Strobhart,  Eq.  1.  Thus  where  the 
testator  bequeathed  to  his  wife  all  the 
property,  real  and  personal,  which  he 
had  received,  or  might  receive  from 
her  father's  estate,  or  from  any  other 
source   belonging  to  her,   it  was  de- 


cided, that  evidence  might  be  given, 
that  all  that  had  been  thus  received 
was  in  the  shape  of  money,  in  order 
to  show  that  he  did  not  refer  to  any 
specific  property  then  in  his  hands, 
and  meant  to  give  a  general  or  pecu- 
niary bequest  or  legacy ;  Pell  v.  Ball, 
1  Speer,  Equity,  48.  Parol  evidence 
was  said  by  the  court  to  be  always 
admissible,  for  the  purpose  of  ascer- 
taining and  identifying  the  property, 
to  which  the  will  relates,  although  not 
for  that  of  varying  or  adding  to  the 
meaning  of  the  will  itself,  and  to 
afford  the  only  means  of  determining 
whether  a  bequest,  in  general  terms, 
is  so  in  effect,  or  relates  to  specific 
funds  or  property.  It  was  held  in 
like  manner  in  Warren  v.  Wig/all,  8 
Dessaussure,  47,  that  where  the  por- 
tion of  a  wife  on  her  marriage  con- 
sisted of  specific  property,  a  bequest 
of  all  that  she  had  brought,  was  also 
specific,  although  it  would  have  been 
general  had  her  dowry  been  pecu- 
niary; and  a  similar  decision  was 
made  in  Spencer  v.  Iliggins,  22  Conn. 
.521,  where  a  bequest  of  "  all  that  my 
wife  brought  at  her  marriage,"  was 
held  to  pass  specifically  a  fund  arising 
from  certain  notes  which  she  held 
when  married,  but  which  had  subse- 
quently been  collected  and  then  de- 
posited to  her  credit  in  a  saving  fund. 
It  has  notwithstanding  been  held, 
that  a  gift  of  bank  or  other  stock,  or 
of  chattels,  will  not  be  specific,  unless 
the  terms  in  which  it  is  made,  denote 
an  intention  to  give  specific  property 
which  the  testator  then  has,  as  dis- 
tinguished from  that  which  he  or  his 
executors  may  subsequently  acquire; 
and  that  the  diSiculty  cannot  be  ob- 
viated by  showing  that  the  testator 
had  property  of  the  kind  which  he 


ASHBURNER     V.     MACGUIRE. 


>03 


gave,  and  should,  therefore,  be  pre- 
sumed to  have  referred  to  it  when  the 
bequest  was  made ;  Tift  v.  Porter,  4 
Selden,  516;  Davis  v.  Cain,  1  Ire- 
dell, Equity,  304 ;  Graham  v.  Gra- 
ham, 1  Busbee,  Eq.  291.  Thus  iu 
Tift  V.  Porter,  a  bequest  by  which 
the  testator  gave  two  hundred  and 
forty  shares  of  Cayuga  Bank  stock 
to  one  person,  and  one  hundred  and 
forty  shares  in  the  same  bank  to  an- 
other, without  designating  what  was 
thus  given  as  his,  or  speaking  of  it  as 
that  which  he  owned,  was  held  gen- 
eral for  want  of  such  identification,  in 
spite  of  the  argument  that  it  was  un- 
reasonable to  suppose  that  he  did  not 
mean  to  give  the  shares  which  he  actu- 
ally owned ;  or  that  he  had  reference 
to  the  possibility  of  a  future  purchase. 
A  similar  view  was  taken  in  Davis  v. 
Cain,  where  a  bequest  ''of  twenty- 
five  shares  of  stock  in  the  State 
Bank,"  was  held  neither  to  be  specific 
on  its  face,  nor  susceptible  of  being 
rendered  so  by  evidence,  that  the  tes- 
tator owned  the  twenty-five  shares 
of  the  stock  thus  bequeathed,  at  the 
time  of  making  his  will.  The  au- 
thority of  this  case,  was  recognized 
in  3I'Guire  v.  Evans,  5  Iredell,  Eq. 
269,  but  held  not  to  apply  to  the  legacy 
under  consideration,  as  the  testator 
had  followed  up  a  general  bequest  of 
stock  in  the  Cape  Fear  Bank,  by  sub- 
sequent words  restraining  it  to  the 
stock  then  in  his  possession.  The 
distinction  taken  in  these  cases,  be- 
tween a  bequest  of  stock  generally, 
and  of  stock  owned  or  held  by  the 
testator,  seems  to  be  sound,  although 
inconsistent  with  the  decision  in  Cuth- 
bert  V.  Cuthbert,  3  Yeates,  486,  where 
a  bequest  of  the  dividends  and  income 
of  §8000,  six  per  cent,  stock  of  the 


United  States,  was  held  specific,  with- 
out anything  on  the  face  of  the  will,  re- 
ferring necessarily  to  stock  then  speci- 
fically iu  the  possession  of  the  testator, 
or  showing  that  his  intention  did  not 
extend  to  a  purchase  of  stock  by  his 
executors,  if  necessary  to  satisfy  the 
bequest.  When,  however,  a  testator 
follows  a  bequest  of  various  chattels, 
which  he  is  proved  to  have  had,  but 
which  he  fails  to  designate  as  his  own, 
by  a  direction  that  the  rest  of  his  per- 
sonal property  shall  be  sold,  and  the 
proceeds  distributed ;  the  language 
held  in  the  latter  part  of  the  clause, 
will  show  that  the  whole  relates  solely 
to  his  own  property,  and  all  the  lega- 
cies will  be  viewed  as  specific  ;  Gra- 
Jiam  v.  Graham,  1  Busbee,  Equity, 
291.  And  there  can  be  no  duubt, 
that  a  bequest  will  be  construed  as 
specific,  in  the  absence  of  words  of 
possession  or  ownership,  if  it  distinct- 
ly appear  from  the  general  tenor  of 
the  provisions  made  by  the  testator, 
that  he  had  reference  exclusively  to 
particular  stocks  then  owned  or  held 
by  him;  White  v.  Winchester,  6  Pick. 
48.  And  in  Earp's  Estate,  1  Parsons, 
Eq.  Cas.  453,  a  bequest  of  820,000 
invested  by  the  testator  in  the  busi- 
ness of  a  partnership,  as  a  special  part- 
ner, was  construed  as  specific,  and  as 
entitling  the  legatee  to  the  interest  of 
the  testator  in  the  partnership,  whe- 
ther increased  by  profits  or  diminish- 
ed by  losses. 

A  bequest  of  the  whole  or  of  any 
aliquot  part  of  the  testator's  property 
is  general ;  Bardwell  v.  Bardwell, 
10  Pickering,  19;  3Iayo  v.  Bland, 
4  Maryland  Chancery,  484.  And  the 
construction  will  be  the  same,  where 
the  bequest  is  of  "all  his  household 
goods  and  furniture,  money,  bonds, 


504 


SPECIFIC     LEGACIES.  —  ADEMPTION. 


and  mortgages,  outstanding,  due,  and 
owing  to  liim,  and  all  other  his  per- 
sonal estate,  of  whatever  nature  or 
kind  soever;  Walker's  Estate,  3  Kawle, 
229.      And  when  the  testator,  after 
giving  all  his  estate,  real  and  personal, 
to  his  wife,  for  life  generally,  went  on 
to  give  certain  books,  named  specifi- 
cally, to  a  son-in-law,  and  then  added 
that  all  the  rest  of  his  hooks  and  house- 
hold furniture  should  go  to  his  wife, 
as  hereinbefore  mentioned,  no  part  of 
the  bequest  to  her  was  held  specific, 
apparently  because   the   specification 
was  a  mere  repetition  of  what  had 
been  included  in  the  general  bequest; 
Mai/o  V.  Bland.     But  a  bequest  "  of 
all  the  hovisehold  goods  and  movable 
efi"ects"  of  the  testator,  was  held  to  be 
specific,  and  at  all  events  freed  from 
the  burden  of  debts,  by  a  direction, 
that  they  should  be  paid  by  the  de- 
visees of  the  land;   Spraker  r.  Van 
Ahti/nc,  18  Wend.  200.     And  where 
a  testator  gave  all  his  household  fur- 
niture and   personal    property,   after 
paying  his  funeral  expenses,   to  his 
wife,  and  then  went  on  to  bequeath 
"  all  balances,  deeds,  and  vouchers  for 
debt,"  which  might  remain  after  the 
provisions  of  his  will  had  been  com- 
plied with,  to  his  nephew,  the  court 
were  of  opinion,  that  the  legacy  to  the 
wife  was  specific,  and  that  the  burden 
of  all  debts,  except  funeral  expenses, 
should  consequently  be  thrown  on  the 
bequest  to  the  nephew  ;    il/'  Glaugli- 
lin  V.  M-Gkuujlilin,  12   Harris,  20. 
But  a  bequest  is  not  necessarily  less 
specific,  because  it  is  general ;  Betli- 
une  V.  Kennedy,  1   Mylne  &  Craig, 
114 ;  and  a  gift  of  the  whole  of  a 
particular  kind  of  property  may  con- 
scfjuciitly  be  specific,  especially  when 
particular  chattels  arc  excepted  from 


it,  and  given  specifically  to  other  lega- 
tees, thus  showing  that  the  testator 
had  specific  goods  or  effects  in  view, 
and  meant  to  give  them  specifically; 
Liglitfoot  V.  Liglitfoot,  27  Alabama, 
351 ;  Everett  v.  Lane,  2  Iredell,  Eq. 
548.     And  the  better  opinion  would 
seem  to  be,  that  a  general  bequest  of 
the  whole,  or  an  aliquot  part  of  the 
testator's  property,  may  be  preceded 
or  followed  by  such  an  enumeration  of 
specific  items  as  to  show  that  the  ge- 
neral words  were  introduced  for  the 
sake  of   comprehensiveness  and  bre- 
vity, and  that  the   intention   was  to 
give  the  legatee  all  that  those  words 
comprised,  free,  so  far  as  justice  would 
permit,  from  the  burden  of  debts,  and 
specifically;    Blount   v.    Uijikins,   7 
Simmons,  43 ;    Graham  v.  Graham, 
1  Busbee,  Eq.  291 ;  Brown  v.  James, 
3  Strobhart,    Equity,  24  ;  3Iinor  v. 
Dahney,  3  Randolph,  191. 

It  is  a  necessary  incident  to  every 
gift  of  specific  property,  that  it  must 
fail  of  efi'cct,  if  the  property  cease  to 
exist  before  the  gift  goes  into  opera- 
tion. 

In  Walton  v.  Walton,  7  Johnson, 
Ch.  258,  the  bequest  was  of  "all  my 
right,  interest  and  property  in  the 
thirty  shares  which  I  own  in  the  Bank 
of  the  United  States,  and  in  four  shares 
which  I  own  in  the  companies  of  the 
northern  and  western  inland  lock  na- 
vigation." Subsequently  to  the  exe- 
cution of  the  will,  the  charter  of  the 
Bank  of  the  United  States  expired, 
and  its  property  and  funds  were  con- 
veyed to  trustees  for  the  purpose  of 
distribution  among  the  stockholders. 
The  testator  received  several  dividends 
on  the  principal  of  his  stock  under  the 
trust  before  liis  death,  and  a  consider- 
able sum  remained  due  and  unpaid  at 


ASHBURNER     V.     MACGUIRE. 


505 


tliat  time,  and  at  the  time  of  filing  the 
bill  against  the  executors.  The  pro- 
perty and  rights  of  the  inland  naviga- 
tion company,  were  transferred  to  the 
state  during  the  lifetime  of  the  testa- 
tor, by  an  act  of  the  legislature,  and 
a  large  sum  awarded  to  him  as  a  com- 
pensation on  account  of  six  shares 
which  he  then  held,  and  which  had 
been  substituted  for  the  shares  which 
he  held  at  the  execution  of  this  will. 
A  considerable  portion  of  this  sum 
was  standing  in  the  books  of  the  trea- 
surer of  the  company  to  the  credit  of 
the  testator,  at  the  time  of  his  death, 
and  had  since  been  paid  to  his  execu- 
tor. Under  these  circumstances,  the 
question  was,  whether  the  legacies 
were  specific,  and  if  so,  whether  they 
had  been  partially  or  wholly  adeemed 
by  the  change  in  their  condition,  in 
the  interval  between  the  period  of  the 
original  bequest,  and  that  of  the  death 
of  the  testator.  And  it  was  held  by 
the  court,  that  although  they  were 
specific,  the  mere  fact  of  their  con- 
version from  an  active  to  a  passive 
state,  by  the  change  in  the  condition 
of  the  companies,  in  which  they  were 
held,  would  not  work  an  ademp- 
tion, but  that  they  were  undoubtedly 
adeemed  so  far  as  they  had  been  ac- 
tually paid  in  another  form  into  the 
hands  of  the  testator.  '■'■  I  am  of  opi- 
nion," said  Chancellor  Kent,  ''  that 
these  bank  shares  were  given  as  a  spe- 
cific legacy.  The  testator  evidently 
meant  to  give  those  identical  shares, 
whether  they  were  worth  more  or  less, 
and  not  the  value  of  them  in  money. 
This  would  appear  to  be  a  very  clear 
point ;  yet  in  considering  this  doctrine 
of  ademption,  it  is  difficult  sometimes 
to  perceive  the  distinction  which  is 
endeavored  to  be  kept  up  through  all 


the  cases,  between  specific  and  gene- 
ral pecuniary  legacies.  Where  a  debt 
or  specific  chattel  is  bequeathed,  {le- 
gatuni  nominis  vel  ilehiti,')  the  speci- 
fic legacy  is  extinguished  in  the  life- 
time of  the  testator,  by  the  extinguish- 
ment of  the  thing  itself,  as  by  pay- 
ment of  the  debt,  or  by  the  sale  or 
conversion  of  the  chattel.  But  the 
ademption  does  not  apply  to  a  pecu- 
niary or  demonstrative  legacy,  which 
is  general  in  its  nature,  though  a  par- 
ticular fund  be  pointed  out  by  the  will 
to  satisfy  it.  If  the  fund  fails,  such 
a  legacy  is  to  be  made  good  out  of  the 
general  assets,  as  the  fund  is  desig- 
nated only  as  the  most  convenient 
means  by  which  to  discharge  it,  and 
becomes  descriptive  of  the  amount  or 
value  of  the  gift. 

"  We  have  an  example  of  this  kind 
of  money  legacy  given  in  the  civil  law, 
and  of  the  sound  principle  upon  which 
the  distinction  is  supported.  The  tes- 
tator gave  to  PamplLi'la  400  aureis  or 
pieces  of  gold,  and  referred  to  a  debt 
which  Julius,  his  agent,  owed  him, 
and  to  his  property  in  the  army,  and  to 
his  cash.  {Aureos  quadringentos  Pam- 
philce.  dari  volo,  ita  ut  infra  scrij?- 
tmn  est:  ah  Julio  auctore  aureos,  tot; 
et  in  castris  qiios  haheo,  tot :  et  in  nit^ 
merato  quos  haheo,  tot.)  He  died 
without  altering  his  will,  but  after  he 
had  converted  all  that  property  to 
other  uses ;  and  the  question  was, 
whether  the  legacy  was  due  ?  The 
answer  of  Julian,  the  civilian,  was, 
that  the  testator  intended  only  to  point 
out  to  his  heirs,  the  funds  from  which 
the  legacy  could  most  easily  be  drawn, 
without  intending  to  annex  a  condi- 
tion to  a  pure  gift,  and  that  the  le- 
gacy was,  consequently,  to  be  paid. 
Dig.  30,  1.  96.     De  Legatis. 


-M 


SPECIFIC     LEGACIES. 


■ADEMPTION. 


''  The  cases  in  the  English  books 
turn  on  very  refined  distinctions  be- 
tween a  specific  and  a  pure  legacy. 
Thus,  for  instance,  where  the  testator 
gave  to  his  niece  500  ^joM^rfs,  wliich 
Lady  C.  oiced  him  hi/  bond;  (^Paw- 
let's  case,  T.  Ilaym.  335,)  or  where 
the  testator  enumerated  his  mortga- 
ges, bonds  and  notes,  and  after  giving 
an   annuity   out   of    the   annual    in- 
terest, directed  his  mortgages,  lands 
and  notes,  stating  the  amount,  to  he 
vested  in  trustees  for  charitahle  uses  ; 
(^Attorney -General  v.   Parkin,  Amb. 
566,)  or  where  he  gave  1400  2^onnds 
for  which  he  had  sold  his  estate  that 
day;  {Carteret  v.  Carteret,  cited  in 
2   Bro.    114,)   or  where  he  gave  the 
money  arising  on  a  hill  of  exchange 
for  1500 jwunds ;  (Coleman  v.  Cole- 
man, 2  Vesey,  jun.  639,)  in  all  these 
cases,  the  receipt  of  the  debt  by  the 
testator,  was  held  to  be  no  ademption, 
because  the  legacies  were  considered 
as  pecuniary  and  not  specific,  notwith- 
standing a  reference  was  made  to  a 
particular  part  of  the  estate,  as  the 
part  out  of  which  the  testator  thought 
it   most   convenient   they  should  be 
paid.     The  courts  are  so  desirous  of 
construing  the  bequest  to  be  general, 
that  if  there  be  the  least  opening  to 
imagine  the  testator  meant  to  give  a 
sum  of  money,  and  referred  to  a  parti- 
cular fund  only,  as  that  out  of  which 
he  meant  it  to  be  paid,  it  shall  be  con- 
strued pecuniary,  so  that  the  legacy 
may  not  be  defeated  by  the  destruc- 
tion of  the  security. 

"  On  the  other  hand,  in  the  case  of 
a  bequest  of  the  interest  of  a  bond  of 
3500  pounds,  for  life,  to  B.,'  and  the 
principal,  on  her  decease,  to  C.  ;  (Ash- 
hurner  v.  M^Guire,  2  Bro.  lOS,)  or 
where  the  testator  bequeathed  the  resi- 


due (aYter  deducting  500  pounds)  of 
the  money  owing  to  him  by  Sir  II.  31.  ; 
(Rider  V.   Wager,  2  P.  Wms.  328,) 
or   8000   pounds,   the   amount  of  a 
banker's  note;   (Chaivorth  v.  Beech, 
4  Vesey,  555,  or  the  interest  of  300 
pounds  upon  bond,  to  the  legatee  for 
life,  andaft§r  her  death  he  bequeathed 
over  the  i}rincip>al  and  interest;  (tinner 
V.  Johnson,  4  Vesey,  568,)  or  where 
he  gave  all  the  stock  he  had  in  the 
three  per    cents.,   being    cdjout    5000 
pounds;  (Humphreys  v.  Humjjhreys, 
2  Cox,  184,)  or  the  sum  or  sums  of 
money  which  his  executors  might  re- 
ceive on  a  note  of  -^00  pounds ;  (Fryer 
V.  Morris,  9  Vesey,  360,)  in  all  these 
cases,  the   legacies  were   held  to  be 
specific,  and  a  receipt  of  the  money 
by  the  testator  an  ademption  of  the 
legacy.     The  reasoning  on  this  sub- 
ject is,  that  if  the  legacy  is  meant  to 
consist  of  the  security,  it  is  specific, 
though  the  testator  begins  by  giving 
the  sum  due  upon  it.     A  legacy  of  a 
debt,  unless  there  is  ground  for  con- 
sidering it  a  legacy  of  money,  and 
that  the  security  is  referred  to  as  the 
best  mode  of  paying  it  out  of  the  as- 
sets, is  as  much  specific  as  the  legacy 
of  a  horse,  or  any  movable  chattel 
whatever.     If   the    specific    thing  is 
disposed  of  or  extinguished,  the  legacy 
is  gone.    Lord  Thurlow  said,  in  Stan- 
Icy  V.  Potter,  (2  Cox,  180,)  that  the 
question,  in  these  cases,  did  not  turn 
on  the  intention  of  the  testator,  and 
that  the  idea  of  proceeding   on  the 
animus  adijnendihad  introduced  con- 
fusion.    Where  the   testator    gave  a 
specific  chattel  in  specie,  the  ademp- 
tion follows,  of  course,  on  a  sale,  or 
change,  or  destruction  of  the  chattel, 
and  the  ademption  becomes  a  rule  of 
law,  and  not  a  question  of  intention. 


ASHBURNER     V.     MACGUIRE. 


50T 


But  I  apprehend  the  words  of  Lord 
Thurlow  are  to  be  taken  witb.  con- 
siderable qualification  ;  and  tbat  it  is 
essentially  a  question  of  intention, 
when  we  are  inquiring  into  the  cha- 
racter of  the  legacy,  upon  the  dis- 
tinction taken  in  the  civil  law,  be- 
tween a  demonstrative  legacy,  where 
the  testator  gives  a  general  legacy, 
but  points  out  the  fund  to  satisfy  it 
and  where  he  bequeaths  a  specific 
debt.  In  Coleman  v.  Coleman,  Lord 
Loughborough  puts  the  question  of 
general  or  specific  legacy  entirely  on 
intention. 

"  But  it  is  unnecessary  to  examine 
the  decisions  further  on  this  point. 
The  present  case,  as  to  the  bank 
shares,  is  one  to  which  the  doctrine 
of  ademption  applies.  It  is  impos- 
sible to  mistake  the  construction  of 
the  will,  or  to  consider  the  legacy 
other  than  a  specific  one,  and  that 
being  granted,  it  follows,  of  course, 
that  the  legacy  was  adeemed  j9ro  tanto, 
or  as  far  as  the  testator  received  the 
dividends.  And  I  think  it  is  equally 
certain,  that  the  legacy  of  the  shares 
was  not  wholly  adeemed,  or  the  legacy 
destroyed  or  extinguished  by  the  varia- 
tion of  the  testator's  interest  in  those 
shares,  owing  to  the  dissolution  of  the 
charter.  The  fund  was  varied,  and 
differently  arranged,  and  diminished 
in  value  by  operation  of  law,  but  not 
destroyed,  nor  its  identity  lost.'  In 
Bachwell  v.  Child,  (Amb.  260,)  a 
partner  by  will  bequeathed  a  certain 
proportion  of  the  profits  of  the  part- 
nership, and  afterwards  the  partner- 
ship expired,  and  was  renewed  with 
a  variation  as  to  the  amount  of  the 
interest  of  the  partners;  yet  it  was 
held,  that  the  renewal  of  the  articles 
was  not  an  ademption  or  revocation  of 


the  will.  A  case  still  stronger  and 
more  analogous,  is  that  of  Ashhurner 
V.  31'  Guire,  already  mentioned.  The 
testator  bequeathed  to  his  sister,  for 
life,  the  interest  of  a  bond,  due  him, 
and  he  gave  the  principal,  on  her 
death,  to  her  children.  The  debtor 
became  a  bankrupt,  and  the  testator 
proved  the  debt  under  the  commis- 
sion, and  received  a  dividend,  and 
died.  Lord  Thurlow  decreed  against 
the  administrator  and  residuary  lega- 
tees, that  the  bond  should  be  delivered 
to  the  sister  and  her  children,  that 
they  might  receive  the  future  divi- 
dends of  the  bankrupt's  estate.  The 
legacy  was  considered  adeemed  so  far 
only  as  the  dividend  had  been  received 
by  the  testator;  and  the  chancellor 
held,  as  Lord  Camden  and  others  had 
held  before  him,  that  there  was  no 
ground  for  a  distinction  between  a 
voluntary  payment  and  one  coerced 
by  suit  or  demand.  In  both  cases, 
the  legacy  of  the  debt,  so  far  as  pay- 
ment had  been  made,  was  extinguish- 
ed. But  though  the  value  of  the  debt 
had  become  greatly  impaired  by  the 
bankruptcy  of  the  debtor,  and  his  es- 
tate had  passed,  by  act  of  law,  into 
the  hands  of  trustees,  to  be  distributed 
according  to  prescribed  rules,  the 
legatee  was  entitled  to  what  remained 
of  the  debt.  Upon  the  same  principle, 
the  plaintiff,  in  this  case,  must  be  en- 
titled to  the  future  dividends,  if  any, 
upon  the  testator's  'right,  interest 
and  property  in  the  thirty  shares.' " 

The  doubt  expressed  in  this  opinion, 
as  to  the  weight  due  to  intention,  relat- 
ed to  its  effect,  in  rendering  the  legacy 
demonstrative  or  specific,  and  not  to 
the  question  of  ademption  by  a  change 
of  form,  if  held  to  be  specific.  But  in 
^Yhite  V.  Winchester,  6  Pick.  48,  where 


508 


SPECIFIC     LEGACIES.  —  ADEMPTION. 


a  bequest  of  specific  stock,  was  held  to 
be  adeemed  by  the  conversion  of  the 
stock  into  another  form,  it  seems  to 
have  been  thought,  that  the  presump- 
tion in    favor   of    ademption,    might 
be  rebutted  by  clear  evidence  of  a 
contrary  intention.     And  in  Stout  v. 
Ilart,  2  Ilalsted,  418,  where  the  court 
decided  that  a  specific  bequest  of  a 
debt  secured  by  bond,  would  not  be 
adeemed  by  taking  a  new  bond  for  the 
debt,  and  cancelling  the  old  one,  they 
intimated     a     strong     opinion,    that 
ademption  is  wholly  a  question  of  in- 
tention, and   that   the   payment  of  a 
debt  specifically  bequeathed  without 
the  request  of  the  debtor,  or  even  a 
payment  at  his  request,  will  not  be  an 
ademption,  unless  such  was  his  inten- 
tion.    This  view  of  the  law  is  in  some 
measure  sustained   by  the  language 
held  in  Coleman  v.  Coleman,  2  Ves. 
jun.  639,  and  Drinkicatcry.  Falconer, 
2   Ves.    623 ;  and  was  also   warmly 
pressed  in  the  recent  case  of  Blahe  v. 
Blake,    16   Georgia,    119.      But  al- 
though supported  by  plausible  consi- 
derations of  equity,  it  seems  to  have 
been   definitively   abandoned    in    the 
more  recent  cases  in  England  ;  ante. 
The  preponderating  weight  of  Ame- 
rican authority,  is  also  in  favor  of  con- 
sidering ademption  as  a  question  of 
fact  and  not  of  intention.      In  the 
case  of  Blackstone  v.  Blackstone,  3 
"Watts,  335,  where  the  point  came  be- 
fore the  Supreme  Court  of  Pennsyl- 
vania, the  bequest  was  of  "  my  two 
hundred   and   fifty   shares   of  capital 
stock  which  I  hold  in  the  Union  Bank 
of  Pennsylvania,"  and  it  was  decided, 
that  as  the  words  used  by  the  testator 
clearly  referred  to  the  stock  then  ac- 
tually owned  by  him,  the  bequest  was 
specific,  and  that  parol  evidence  was 


inadmissible,  to  show  that   a  subse- 
quent sale  of  the  stock  was  intended 
to  put  the  property  in  a  safer  and  more 
advantageous  form  for  the  legatee,  and 
not  as  an  ademption.     The  evidence 
in  this  case  was  of  the  strongest  cha- 
racter, consisting  of   declarations  of 
the  testator,  that  the  stock  was  not 
safe,  and    that  he  would,  therefore, 
sell  it  and  invest  the  money  in  another 
form  for  the  benefit  of  his  grandchil- 
dren.    But  the  rule  that  the  annihi- 
lation of  a  specific  legacy,  or  such  a 
change  in  its  state  as  makes  it  another 
thing,  annuls  the  bequest,  was  held 
by  the  court  to  be  paramount  to  the 
question  of  intention,  and  too  fully 
established  to  be  shaken.    So  in  Citth- 
bert  V.  Cuthbert,  3  Yeates,  486,  a  be- 
quest of  the  dividends  of  ^8000  go- 
vernment stock  to  trustees,  for  the 
separate  use  of  the  testator's  niece, 
the  principal  to  go  to  the  trustees  as 
paid  off  by  the  United  States,  upon 
the  same  trusts,  was  held  to  be  spe- 
cific, and  to  be  adeemed  so  far  as  the 
stock   was  paid   off"   by   the  United 
States,  during  the  lifetime  of  the  tes- 
tator.    These  cases  were  followed  in 
Alsop's  Appeal,  9  Barr,  374,  by  hold- 
ing that  a  bequest  of  "  $10,000  Cin- 
cinnati State  Stock,  now  in  my  posses- 
sion," was  specific,  and  was  adeemed 
pro  tanto  by  a  sale  of  part  of  the  stock 
by  the  testator.     And  it  was  further 
decided,  that  the  bequest  was  not  re- 
vived as  to  the  portion  thus  adeemed, 
nor  rendered  general,  by  a  subsequent 
codicil  confirming  it,  and  charging  it 
upon  his  estate,  the  apparent  purpose 
of    the   additional   codicil  being  the 
confirmation,  and  not  the  renewal  or 
extension  of  the  bequest. 

The  sale  by  the  testator  of  stock, 
which  he  had  specifically  bequeathed, 


ASHBURNER     V.      MACGUIRE. 


509 


was  also  held  an  absolute  ademption, 
in  Newcomhe  v.  St.  Peter's  Church, 
2  Sandford,  Chancery,  636.  And  the 
American  authorities  in  general,  sus- 
tain the  position,  that  any  new  dispo- 
sition of  the  subject-matter  of  a  be- 
quest, by  the  donor  in  his  lifetime, 
revokes  the  bequest,  even  when  the 
circumstances  justify  the  belief  that 
such  was  not  his  intention;  God- 
dard  v.  Wagner,  2  Strobhart,  Equity, 
1 ;  Beck  V.  M'  GHles,  9  Barbour,  35  ', 
Galbreath  v.  Winter's  Ex'ors,  10 
Ohio,  65.  In  the  case  last  cited,  the 
court  held,  that  a  bequest  of  all  that 
might  be  collected  from  a  debt  was 
specific,  and  was  adeemed  by  payment 
in  the  lifetime  of  the  testator,  and  said 
that  a  contrary  doctrine  would  involve 
the  necessity  of  deciding,  that  the 
legatee  would  be  entitled  to  the  full 
amount  of  the  debt,  although  nothing 
was  collected. 

There  can,  however,  be  no  doubt, 
as  to  the  point  actually  decided  in  Stout 
V.  Hart,  that  the  effect  of  taking  a 
new  security  for  an  antecedent  debt, 
is  a  question  of  intention,  and  that  it 
will  not  operate  as  an  extinguishment 
and  consequent  ademption,  unless  in- 
tended as  an  extinguishment ;  Ford 
V.  Ford,  3  Foster,  212 ;  Anthony  v. 
Smith,  1  Busbee,  Eq.  188.  And  in 
Gardner  v.  Printup,  2  Barbour,  S. 
C.  Rep.  83,  it  was  decided,  that  where 
an  arrangement  was  made  between  a 
mortgagee,  a  mortgagor,  and  a  pur- 
chaser of  part  of  the  mortgaged  pre- 
mises, by  which  the  whole  of  the  pur- 
chase-money was  credited  on  the  mort- 
gage on  payment  of  part,  and  the 
execution  of  a  bond  for  the  residue, 
a  specific  legacy  of  the  proceeds  of 
the  mortgage,  was  adeemed  only  to 
the  extent  of  the  actual  payment,  and 


not  as  to  the  amount  covered  by  the 
bond  of  the  purchaser.  And  the 
court  seem  to  have  been  of  opinion, 
that  under  the  word  "  proceeds,"  the 
legatee  would  have  been  entitled  to  the 
amount  actually  paid,  if  it  could  have 
been  traced  and  identified  with  suffi- 
cient certainty,  although  subsequently 
invested  in  another  form.  In  like 
manner,  when  a  bequest  was  made  to 
a  wife,  of  all  the  furniture  and  pro- 
perty "  brought  with  her  at  the  time 
of  our  marriage,"  she  was  held  en- 
titled to  the  whole  of  the  proceeds  of 
that  property  thus  referred  to,  al- 
though it  originally  consisted,  for  the 
greater  part,  of  promissory  notes, 
which  had  been  renewed  or  converted 
into  other  securities  since  the  mar- 
riage; Spencer  v.  Higgins,  22  Conn. 
521. 

In  Kent  v.  Somervill,  7  Gill  & 
Johnson,  265,  there  arose  a  singular 
question  as  to  the  effect  of  a  specific 
bequest  of  a  bond,  when  the  obligor 
was  named  as  executor.  Apart  from 
the  influence  of  express  enactment, 
this  would  seem  to  have  been  an 
ademption  of  the  legacy  both  at  law 
and  in  equity,  for  the  bond  would 
have  been  gone  in  law,  and  although 
assets  in  equity,  would  no  longer  have 
answered  to  the  description  in  the  be- 
quest. But  as  a  special  provision  had 
been  made  against  the  extinguishment 
of  debts,  under  such  circumstances, 
by  the  law  of  Maryland,  the  legatee 
was  held  entitled  to  enforce  the  bond 
against  the  executor. 

It  seems  to  have  been  thought,  in 
BlachstoneY .  BJackstone,  thatachange 
of  the  condition  of  the  subject  of  a 
specific  legacy,  made  by  the  act  of  the 
law,  would  not  have  the  same  effect, 
as  when  made  by  the  act  of  the  tes- 


510 


SPECIFIC     LEGACIES. — ADEMPTION. 


tator.  In  Ludl<t7n's  Estate,  1  Par- 
sons, Equity  Cases,  116;  1  Harris, 
188 ;  it  was,  notwithstanding,  decid- 
ed, that  the  payment  of  a  loan  by  the 
government,  was,  although  compul- 
sory, as  much  an  ademption  of  a  be- 
quest of  the  loan,  as  if  it  had  been 
the  result  of  the  volition  or  action  of 
the  testator.  And  the  general  prin- 
ciple, that  ademption  is  independent 
of,  and  may  be  contrary  to  intention, 
was  carried  to  its  farthest  limits  in 
JlaJce  V.  Hermann,  9  Harris,  301,  by 
a  decision,  that  the  payment  of  a  debt 
after  the  creditor  had  become  insane, 
was  an  ademption  of  an  anterior  be- 
quest  of  it  to  the  debtor,  and  that  he 
consequently  could  not  recover  back 
what  he  had  paid,  from  the  executors 
of  the  creditor. 

There  can,  however,  be  no  ademp- 
tion, so  long  as  the  subject-matter  of 
the  bequest  subsists  in  form,  however 
impaired  or  deteriorated  in  value.  Thus 
in  Havens  Y.  Havens,  1  Sandford,  Ch. 
324,  it  was  decided  that  where  the  tes- 
tator bequeathed  one  hundred  shares 
in  the  stock  of  an  insurance  company, 
and  subsequently  filled  up  forty  of 
them  by  a  new  subscription,  under  an 
act  of  assembly,  passed  for  the  pur- 
pose, after  the  company  had  become 
insolvent  in  consequence  of  losses, 
but  allowed  the  rest  to  be  issued  to 
other  persons,  the  bequest  was  only 
revoked  as  to  these,  and  that  those  to 
which  he  subscribed  anew,  passed  to 
the  legatee. 

In  White  v.  Winchester,  and  Cuth- 
Lert  V.  Cuthhert,  the  ademption  of  the 
bequest  was  held  not  to  be  affected  by 
a  direction  given  by  the  testator,  that 
if  the  stock  should  be  paid  off,  his 
executors  should  invest  the  principal, 
and  pay  the  interest  to  the  legatees. 


As  this  direction  only  provided  for 
the  event  of  a  repayment  after  death, 
it  was  held  not  to  vary  the  effect  of  the 
conversion  of  the  subject-matter  of  the 
bequest,  during  the  testator's  lifetime. 
But  as  only  the  dividends  of  the  stock 
were  given  to  the  legatees  in  the  first 
instance,  this  direction  would  seem  to 
have  been  evidence  of  an  intention, 
that  the  beneficiaries  should  receive  a 
pecuniary  benefit,  in  the  shape  of  in- 
come, irrespectively  of  the  change  of 
form  of  the  fund  out  of  which  it  is- 
sued; and  if  so,  the  legacies  were 
demonstrative,  rather  than  specific. 
Moreover,  there  would  seem  to  be 
some  reason  for  contending,  that 
where  the  bequest  is  of  the  proceeds 
of  a  debt,  payment  will  not  be  an 
ademption,  if  the  amount  paid  can  be 
traced  and  identified,  although  rein- 
vested in  another  form  ;  Gardner  v. 
Printup,  2  Barbour,  Sup.  Ct.  Reps. 
83. 

Specific  legacies  do  not  abate  for 
the  payment  of  debts,  until  the  com- 
plete exhaustion  of  general  and  resi- 
duary legacies;  B^rd  v.  Bi/rd,  2 
Brockeubrough,  160;  Hammond  v. 
Hammond,  2  Bland,  306 ;  and  when 
the  debts  are  charged  on  the  land, 
either  by  the  rules  of  law  or  by  the 
act  of  the  testator,  of  the  descended 
real  estate ;  Brainerd  v.  Coxcdry,  16 
Conn.  1,  498  ;  Lightfoot  v.  Lighffoot, 
Tt  Ala.  351,  ante,  250.  And  in  Eng- 
land, upon  the  exhaustion  of  the  rest 
of  the  personalty,  and  of  the  descended 
realty,  specific  legatees  seem  entitled 
to  call  upon  the  devisees  of  the  real 
estate  for  contribution,  (ff?i<e,  p.  211.) 
In  this  country,  however,  the  courts 
have  in  general  doubted  or  denied  the 
right  of  specific  legatees  to  claim  con- 
tribution from  devisees ;  Brainerd  v. 


ASHBURNER     V.     MACGUIRE. 


511 


Coiodry,  ante,  258.  At  common  law, 
all  devises,  even  when  residuary,  were 
specific.  But  the  more  recent  legis- 
lation of  this  country,  which  brings 
after-acquired  real  estate  within  the 
reach  of  an  anterior  devise,  would 
seem  to  have  put  residuary  devises, 
nearly  on  the  same  footing  with  resi- 
duary bequests  of  personalty.  It  was 
held,  accordingly,  in  3rMullin  v. 
Brown,  2  Hill,  Ch.  459,  that  in  mar- 
shalling assets  for  the  payment  of 
debts,  specific  legacies  were  entitled 
to  a  preference  over  residuary  devises, 
but  were  to  be  postponed  to  lands  de- 
vised specifically. 

It  would,  moreover,  appear  to  be 
universally  conceded,  that  where  lands 
devised  are  charged  with  the  payment 
of  debts  by  the  testator,  although 
generally,  their  right  of  exemption 
ceases,  and  they  will  be  compelled  to 
bear  the  burden  thus  thrown  upon 
them,  after  the  exhaustion  of  the  bulk 
of  the  personal  estate,  and  the  de- 
scended realty,  in  exoneration  of  spe- 
cific and  even  of  pecuniary  bequests 
of  personalty,  unless  the  charge  is  im- 
posed both  on  the  real  and  personal 
assets,  when  the  legatees  and  devisees 
must  contribute  equally;  Shreve  v. 
Shreve,  2  Stockton,  Ch.  388;  Shelhi/ 
V.  The  Cummonwealfh,  13  S.  &  R. 
3-1:8 ;  ante,  260.  And  equality  of 
contribution  should,  as  it  would  seem, 
be  enforced  in  this  country  between 
legatees  and  devisees,  for  all  debts 
which  are  chargeable  on  the  land 
in  their  own  nature,  whether  the 
testator  has  or  has  not  gone  through 
the  form  of  imposing  a  charge  which 
the  law  would  have  imposed  had  the 
will  been  silent;  HallowclVs  Estate, 
11  Harris,  223;  Shelhi/ y.  The  Com- 
monicealth,  ante,  259. 


As  every  question  of  this  sort  is  a 
question  of  intention,  words  of  general 
bequest  may  entitle  the  legatee  to  a 
priority  over  specific  legatees,  when 
the  will  shows  as  a  whole  that  such 
was  the  meaning  of  the  testator.  Thus, 
where  the  whole  personal  estate  is 
given  in  specific  bequests,  they  will 
be  postponed  to  a  general  or  pecuniary 
legacy,  for  as  the  testator  cannot  be 
presumed  to  have  meant  to  defeat  the 
general  bequest,  by  giving  the  specific 
bequests,  it  will  be  presumed  that  he 
meant  to  make  the  former  a  charge  on 
the  latter ;  White  v.  Green,  1  Iredell^ 
Eq.  45.  And  when  a  general  or  pecu- 
niary legacy  to  a  widow  operates  as  a 
satisfaction  or  discharge  of  the  interest 
which  she  would  have  had  in  the  es- 
tate of  her  husband  under  the  intes- 
tate law  or  by  way  of  dower,  had  no 
will  been  made,  she  will  be  regarded 
as  a  purchaser,  and  may  claim  priority 
over  specific  legatees;  Lord  v.  Lord, 
23  Conn.  327,  an^e,  vol.1,  p.  419;  Gib- 
son V.  3P  Cormick,  10  Gill  &  J.  Ill ; 
although  the  better  opinion  would  seem 
to  be,  that  the  protection  thus  given 
will  not  be  carried  further  than  the 
sacrifice  for  which  it  is  an  indemnity, 
and  will  only  extend  to  so  much  of 
the  bequest,  as  is  necessary  to  afi'ord 
an  adequate  compensation  for  what 
the  legatee  would  have  received,  had 
she  chosen  to  assert  her  legal  rights 
irrespective  of  the  will,  and  in  oppo- 
sition to  its  provisions ;  Mayo  v.  Bland, 
4  Maryland  Ch.  484. 

There  is  sometimes  much  difiiculty 
in  determining  whether  a  legacy  is 
specific  or  demonstrative,  and  many 
of  the  distinctions  which  have  been 
taken  are  exceedingly  nice;  but  it 
would  seem  in  general,  that  whenever 
the   gift  of  a   sum   out  of,    or  from 


512 


SPECIFIC     LEGACIES. — ADEMPTION. 


the   proceeds  of  a  particular  thing, 
is  a  mere  mode  of  giving  the  thing 
itself,  the  hequest  will   be   specific; 
and  the  same  result  will  follow  when 
the  words  of  demonstration  are  such 
as  to  make    the   property  to   which 
they  refer,  the   sole  fund   to   which 
the   legatee   can   look    for   payment. 
Hence  a  devise  of  land   subject  to 
or  on  condition  of  the  payment  of  a 
legacy,  will   be  viewed   simply  as  a 
mode  of  dividing  or  distributing  the 
land   between   the    devisee   and    the 
lesatee,    each  of   whom   will  take  a 
specific  interest,  depending  solely  on 
the   land,  and  consequently  liable  to 
be  defeated  by  its  failure  or  insufii- 
ciency,  even   when  the  sum  charged 
upon   it   is   made   the   subject  of   a 
prior  or   subsequent   bequest,  unless 
it  is  so  worded  as  to  show  an  inten- 
tion   to    give    the    money    absolutely 
and  not  merely  out  of  the  proceeds  of 
the  land ;  Ba/lioft's  Appeal,  2  Harris, 
451;    Walls   v.   Stewart,  4  Id.  275. 
"If,"  said  Bell,  J.,  in  delivering  the 
opinion  of  the  court  in  Wallsv.  Stewart, 
"  a  legacy  be  given  with  reference  to 
a  particular  fund,   only  as   pointing 
out  a  convenient  mode  of  payment,  it 
is  considered  demonstrative,  and  the 
legatee  will  not  be  disappointed  though 
the  fund^  totally  fail.     But  where  the 
gift  is  of  the  fund  itself,  in  whole  or 
in  part,  or  so  charged  upon  the  object 
made  subject  to  it,  as  to  show  an  in- 
tent to  burden  that  object  alone  with 
the  payment,  it  is  esteemed  specific, 
and  consequently  liable  to  be  adeemed 
by  the  alienation  or  destruction  of  the 
object." 

A  similar  question  arose  in  Liullum's 
Estate,  1  Parsons,  Equity  Cases,  IK!; 
1  Harris,  188;  where  the  testator  be- 
queathed to  his  nephew  "  one  thou- 


sand dollars,  on  the  books  of  the  loan 
office  Pennsylvania,  as  per  certificate, 
No.  267 ;"  and  it  was  contended  by 
the  legatee,  that  the  legacy  was  to  be 
construed  as  a  gift  of  one  thousand 
dollars,  with  a  designation  of  the  cer- 
tificate of  stock,  as  the  fund  out  of 
which  it  was    payable.     But   it   was 
held  by  the  court,  that  the  legacy'  was 
clearly  specific,  and  not  demonstrative, 
and   was   therefore  adeemed  by  the 
payment  of  the  loan  by  the  govern- 
ment, before  the  death  of  the  testator. 
"  It  has  been  strongly  urged  on  us," 
said   King,  President,  "  that  this  is 
not  a  regular  specific  legacy,  but  one 
in  the  nature  of  a  specific  legacy ;  one 
in  which  a  given  sum  of  money  is  be- 
queathed, with  reference  to  a  parti- 
cular fimd  out  of   which  it  is  to  be 
satisfied;  and  that  this  class  of  lega- 
cies are  never  held  to  be  adeemed  or 
extinguished  by  the  sale  or  other  dis- 
position by  the  testator  of  the  fund 
from  which   payment  is  to  be  made 
previous  to   his  death.     That  a  dis- 
tinction does  exist,  between  a  bequest 
of  a  sum  of  money  referring  to  a  secu- 
rity or  debt  for  its  payment,  and  a  gift 
of  the  security  or  debt  itself,  is  un- 
doubted, although  Lord  Thurlow,  in 
Anhburncr   v.    M'Guire,    seemed    to 
have  regarded  it  as  a  refinement.  The 
leaning  of  courts  of  equity  is  always 
against  regarding  a  legacy  as  specific. 
The  will  is  always  read  with  an  incli- 
nation to  hold  a  legacy  general ;  and  if 
there  is  the  least  opening  to  imagine 
the  testator  meant  to  give  a  sum  of 
money,  and    referred  to  a  particular 
fund  only,  as  that  out  of  which  in  the 
Jirst  place  he  meant  it  to  be  paid,  the 
legatee  will  have  this  advantage,  that 
it  shall  be  considered  pecuniary,  so  as 
not  to  have  the  legacy  defeated  by  the 


ASHBURNER     V.     MACGUIRE. 


513 


destruction  of  the  security ;  Chaicorth 
V.  Beech,  4  Vesey,  555,  5G5  ;  Ambler, 
568.  The  same  legacy  may  be  spe- 
cific in  one  sense,  and  pecuniary  in 
another :  specific  as  given  out  of  a 
particuhir  fund,  and  not  out  of  the 
estate  at  large ;  pecuniary,  as  consist- 
ing only  of  definite  sums  of  money, 
and  not  amounting  to  a  gift  of  the 
fund  itself,  or  any  aliquot  part  of  it : 
Smitlb  y.  Fitzgerald,  3  Ves.  &  Beam. 
5.  The  kind  of  legacy  alluded  to  is 
what  is  termed  in  the  civil  law  a  de- 
monstrative legacy,  that  is,  a  general 
pecuniary  legacy,  with  a  particular 
security  pointed  out  as  a  convenient 
mode  of  payment,  where  although 
such  security  may  be  called  in  or  fail, 
the  legacy  will  not  be  adeemed. 

"  Of  this  kind  of  legacy  the  case  of 
Kirhy  v.  Potter,  4  Vesey,  478,  is  an 
example.  There  a  legacy  to  B.  of 
£100,  out  of  my  reduced  bank  annui- 
ties, 3  per  cents.,  '  was  ruled  to  be  a 
general  and  not  a  specific  legacy,' 
Lord  Alvanley  holding  the  phrase 
'£100  out  of  my  reduced  bank  annui- 
ties,' meant  that  the  executor  should 
raise  £100  by  selling  so  much  of  that 
stock ;  Sihley  v.  Perry,  7  Vesey,  522 ; 
Le  Quie  V.  Finch,  8  Merivale,  49 ; 
Deane  v.  Test,  9  Vesey,  146 ;  Fowler 
V.  Willoughhy,  2  Sim.  &  Stewart,  358, 
are  cases  determined  on  the  same  prin- 
ciple. The  principle  extracted  from 
these  cases  is,  that  a  sum  of  money  be- 
queathed out  of  particular  stock,  is 
prima  facie  adjudged  a  money  legacy, 
but  liable  to  be  considered  a  specific 
bequest  of  so  much  of  the  identical 
stock  which  the  testator  had,  when  a 
clear  intention  appears  upon  the  whole 
will.  In  Barker  v.  Rayncr,  5  Madd. 
Ch.  R.  217,  it  is  said,  that, "  when  once 
it  is  determined  that  the  legacy  of  a 

VOL.  II. — 33 


debt  is  specific  and  not  demonstra- 
tive, the  only  safe  and  clear  way  is  to 
adhere  to  the  plain  rule,  that  there  is 
an  end  of  the  specific  gift,  if  the  spe- 
cific thing  does  not  exist  at  the  testa- 
tor's death." 

When  legacies  are  demonstrative, 
that  is,  when  they  are  given  generally 
with  a  demonstration  of  a  particular 
fund,  as  the  source  or  means  of  pay- 
ment, they  will  not  fail  in  consequence 
of  the  conversion  or  extinguishment 
of  the  subject-matter  out  of  which 
they  are  payable,  or  even,  as  it  would 
seem,  when  it  never  had  a  substantive 
existence;  Giddings  v.  Seicard,  2 
Smith,  Court  of  Appeals  Rep.  365; 
Welch's  Ajrpeal,  4  Casey,  363;  Creed 
v.  Creed,  1  Drury  &  Warren,  416; 
Willox  v.  Rhodes,  2  Russell,  452. 
Thus,  a  gift  of  £10,  due  by  J.  S. 
to  the  testator,  is  specific,  and  will 
consequently  fail  if  the  debt  be 
paid  in  the  lifetime  of  the  testator, 
or  if  J.  S.  does  not  really  owe  the 
debt ;  but  a  bequest  of  £10  to  be  paid 
out  of  the  money  due  by  J.  S.,  is 
pecuniary  or  general  with  a  demon- 
stration of  a  particular  fund  as  the 
primary  source  or  means  of  payment, 
and  will  consequently  be  equally  valid 
whether  the  fund  does  or  does  not  exist ; 
Wcdls  V.  Steicart,  4  Harris,  275,  281. 
Hence,  where  legacies  were  given  out 
of  a  debt  alleged  to  be  due  to  the  tes- 
tator by  his  brother,  it  was  held  that 
they  would  take  effect,  even  if  the 
debt  had  no  legal  existence,  and  the 
result  would  be  to  exhaust  the  gene- 
ral personal  estate  of  the  testator ; 
Gallagher  v.  Gallagher,  6  Watts, 
473.  And  when  a  testator  bequeath- 
ed legacies,  payable  out  of  the  pro- 
ceeds of  his  real  estate  which  he  had 
agreed  to  sell,  they  were  held  not  to 


514 


BEQUESTS     FOR     LIFE. — CON  VERSIOlSr. 


have  failed,  although  by  the  rescission 
of  the  contract  of  sale,  and  the  omis- 
sion to  give  any  power  of  sale  to  his 
executors,  the  fund  on  which  they 
were  charged  proved  insufficient,  and 
they  were  thrown,  in  great  measure, 
on  the  personal  estate ;  Cor/dell's 
Exors  V.  Tlie  Widow,  3  Dessaussure, 
34:6.  Demonstrative  legacies,  payable 
out  of  specific  property,  have  also  the 
further  advantage  of  priority  over  the 
property  liable  for  their  payment,  so 
that  the  burden  of  contributing  to  the 
payment  of  debts  will  fall,  in  the  first 
instance,  upon  the  residue  of  that  pro- 
perty, and  not  upon  them ;  Shelby 
V.  The  Commonwealth,  13  S.  &  R. 
348  ;  Barclay's  Estate,  10  Barr,  172  ; 
Spalding  v.  Spalding,  2  Root,  271; 
Childress  v.  Childress,  3  Alabama, 
752.    Thus,  where  the  testator  directs 


that  certain  real  estate  shall  be  sold 
for  the  payment  of  pecuniary  legacies, 
that  portion  of  the  proceeds  of  the  sale 
which  is  not  required  for  the  payment 
of  the  legacies,  will  be  primarily  ap- 
plicable, after  the  exhaustion  of  the 
personalty  to  the  payment  of  the  debts 
of  the  estate,  and  the  legacies  and  real 
estate  specifically  devised,  will  con- 
tribute equally  to  the  payment  of  the 
debts  still  remaining  unpaid ;  Crider's 
Appeal,  1  Jones,  72.  But  although 
a  charge  of  a  legacy  on  land,  or  the 
proceeds  of  land,  will  render  it  spe- 
cific or  demonstrative  ;  the  association 
of  the  bequest,  with  a  clause  direct- 
ing a  sale  of  the  land,  will  not  neces- 
sarily give  it  that  character,  nor  en- 
title it  to  preference  over  the  other 
bequests  in  the  will ;  Payne  v.  Sale, 
2  Dev.  &  Bat.  Equity,  455. 


BEQUESTS    FOR   LIFE. — CONVERSION. 

[*262]  *HOWE  V.  EARL  OF   DARTMOUTH. 

HOWE  V.  COUNTESS  OF  AYLESBURY. 

MAY  22,  1802. 

reported  7  ves.  137. 

Conversion  of  Residue  bequeathed  to  Persons  in  Succession.] — 
General  ride,  that  where  personal  property  is  bequeathed  for  life,  with  re- 
mainders over,  and  not  specifically,  it  is  to  he  converted  into  the  Three  per 
Gents.,  subject,  in  the  case  of  a  real  security,  to  an  inquiry,  tchetJier  it  icill 
be  for  the  benefit  of  all  parties  ;  and  the  tenant  for  life  is  entitled  only  itpon 
that  principle. 

Bequest  of  personal  estate  not  held  specific  merely  from  being  combined  with  a. 
devise  of  land. 

William  Earl  of  Strafford,  by  his  will,  dated  the  25th  of  October, 
1774,  gave  to  his  wife  Anne  Countess  of  Straff"ord  all  his ptersonal  estate  what- 
soever, (except  the  furniture  of  Wentworth  Castle,)  for  her  life,  subject  to  the 
following  outpayments   and  legacies.      He  also  left   to  her   all   his    houses, 


HOWE     V.     EARL     OF     DARTMOUTH.  515 

gardens,  parks,  and  woods,  and  all  his  landed  estates  for  her  life;  and  after- 
wards all  his  personal  and  landed  estates  to  his  eldest  sister  Lady  Anne  Conolly 
for  her  life ;  and  then  to  the  eldest  son  of  George  Byng,  Esq. ;  ajid  afterwards 
to  his  second,  third,  or  any  later  sons  he  may  have  by  the  testator's  niece  Mrs. 
Byng;  and  then  to  the  eldest  son  and  other  sons  successively  of  the  Earl  of 
Buckingham  by  his  niece  Caroline,  but  all  of  them  to  be  subject  to  the  follow- 
ing outpayments  and  legacies.  He  left  his  wife  the  sum  of  £15,000  to  dis- 
pose of  forever  as  she  pleases,  and  the  value  of  £500  in  furniture  in  Went- 
worth  Castle,  of  whatever  sort  she  chooses,  else  the  whole  furniture  to  be 
*hers,  if  she  meets  with  ajiy  difficulty  in  this  disposition.  He  gave 
several  legacies  and  annuities,  and  declared  he  would  have  all  his  L  -  J 
debts  paid,  and  gave  all  his  servants  a  year's  wages. 

The  testator  died  on  the  10th  of  March,  1791.  Anne,  Countess  of  Straf- 
ford, died  in  his  life,  on  the  9th  of  February,  1785.  Lady  Anne  Conolly  filed 
a  bill  for  an  account  of  the  personal  estate,.  &c.  By  a  decree,  made  at  the 
Rolls  on  the  17th  of  May,  1793,  the  usual  accounts  were  directed;  and  it  waa 
declared,  that  the  plaintiff  would  be  entitled  to  the  interest  of  the  clear  resi- 
due of  the  testator's  personal  estate  during  her  life ;  and  an  inquiry  was  di- 
rected, who  were  the  next  of  kin  of  the  testator  at  the  time  of  his  death. 

The  Master's  report,  dated  the  7th  of  March,  179G,  stated  the  account  of 
the  personal  estate,  part  of  which  consisted  of  the  following  stocks  and  annui- 
ties, standing  in  the  testator's  name  at  his  death  : — 

£4320  Bank  Stock ; 

£9572  per  annum  Long  Annuities  j 

£750  per  annum  Short  Annuities. 

Under  orders  made  in  the  cause,  the  sums  of  £15,000  and  £4000  had  been 
paid  in  by  the  executors,  and  laid  out  in  £3  per  cent.  Consolidated  Bank  An- 
nuities. 

By  a  decretal  order,  made  on  the  7th  of  May,  1796,  the  balance  of  the  per- 
sonal estate  in  the  hands  of  the  executors,  and  of  the  interest,  &c.,  was  ordered 
to  be  paid  into  the  Bank ;  and  that  the  executors  should  transfer  the  £4320 
Bank  Stock,,  the  £9572  per  annum  Long  Annuities,  and  £750  per  annum 
Short  Annuities,  to  the  Accountant-General,  in  trust  in  the  cause;  and  that 
the  said  funds,  when  so  transferred,  should  be  sold  with  his  privity ;  and  that 
the  money  to  arise  by  such  sale  should  be  laid  out  in  the  purchase  of  £3  per 
Cent.  Annuities,  in  trust  in  the  cause,  subject  to  a  farther  order;  and  that  the 
Master  should  appropriate  a  sufficient  part  of  the  said  Bank  Annuities,  when 
purchased,  to  answer  the  growing  payments  of  the  several  annuities ;  and  that, 
as  any  of  the  annuitants  should  die,  the  funds  appropriated  respectively 
*should  fall  into  the  general  residue,  with  liberty  to  apply;  and  it  was  r^.^pi-, 
ordered,  that  the  interest  of  the  residue  of  the  said  Bank  Annuities 
after  such  appropriation,  and  also  the  interest  and  dividends  of  the  said 
£4320  Bank  Stock,  should  be  paid  to  the  plaintiff.  Lady  Anne  Conolly,  for 
her  life,  and  on  her  death  any  person  or  persons  entitled  thereto  were  to  be  at 
liberty  to  apply ;  and  after  providing  for  the  costs  out  of  the  balance  of  the 


516  BEQCESTS     FOR     LIFE. — CONVERSION. 

personal  estate,  and  for  the  arrears  of  the  annuities  out  of  the  sum  of  2067?. 
6s.  Id.,  the  balance  of  the  interest  and  dividends  received  by  the  executors 
and  ordered  to  be  paid  into  the  Bank,  it  was  ordered,  that  the  remainder 
should  be  paid  to  Lady  Anne  Conolly;  and  also  that  1846?.  9s.  Id.,  cash  in 
the  Bank,  which  had  arisen  from  interest  of  the  funds  in  which  part  of  the 
testator's  personal  estate  had  been  invested,  should  be  also  paid  to  her;  and 
that  the  dividends  of  24,619?.  4s.  lOfZ.,  ^3  per  Cent.  Bank  Annuities,  in 
which  the  sums  received  by  the  executors  from  the  personal  estate  had  been 
invested,  should  from  time  to  time  be  paid  to  her  during  her  life,  and  on  her 
death  any  persons  claiming  to  be  entitled  were  to  be  at  liberty  to  apply;  and 
it  was  ordered,  that  the  executors  should  get  in  the  outstanding  personal 
estate,  and  that  so  much  thereof  as  should  consist  of  interest,  should  be  paid 
to  Lady  Anne  Conolly,  and  so  much  as  consisted  of  principal  should  be  paid 
into  the  Bank,  subject  to  farther  order. 

The  Master's  farther  report,  dated  the  10th  of  December,  1796,  stated,  that 
the  Bank  Stock  and  the  Long  and  Short  Annuities  had  been  sold,  and  the  pro- 
duce laid  out  in  £3  per  Cent.  Annuities. 

Upon  the  death  of  the  plaintiflf,  Lady  Anne  Conolly,  the  suit  was  revived 
by  her  executors ;  and  the  cause  coming  on  before  Lord  Alvanley,  then  Mas- 
ter of  the  Rolls,  for  fi\rther  directions  on  the  subsequent  report,  it  was  insisted, 
on  the  part  of  Mr.  Byng,  that  Lady  Anne  Conolly  had  received,  for  interest 
and  dividends  accrued  on  the  Bank  Stock  and  the  Long  and  Short  xVnnuities,  and 
r*9/>K-i  the  produce  thereof  laid  out  in  Bank  £o  per  Cent.  Annuities,  *large 
sums  more  than  she  was  entitled  to,  if  those  funds  had  been  sold,  as 
they  ought  to  have  been,  immediately  after  the  testator's  decease,  and  the 
produce  invested  in  a  permanent  fund,  viz.,  the  £3  per  Cent.  Consolidated 
Bank  Annuities.  The  Master  of  the  Rolls  directed  inquiries  with  reference 
to  that  question,  between  the  executors  of  Lady  Anne  Conolly  and  Mr.  Byng, 
and  the  other  parties  interested  in  the  residue  of  the  personal  estate;  with 
liberty  to  present  a  petition  to  re-hear  the  order  of  1796,  as  to  the  payments 
thereby  directed  to  be  made  to  Lady  Anne  Conolly. 

The  re-hearing  was  argued  before  Lord  Rosslyn,  but  no  judgment  was 
given. 

Mr.  Mansfield,  Mr.  Lloyd,  Mr.  W.  Agar,  Mr.  Wingfield,  Mr.  Serjeant  Pal- 
mer, Mr.  Bell,  and  Mr.  Richards,  for  different  parties,  in  support  of  the  peti- 
tion of  re-hearing. 

The  tenants  for  life  of  such  funds  as  Bank  Annuities,  carrying  a  higher  in- 
terest, and  Long  and  Short  Annuities,  wearing  out  rapidly,  are  not  entitled  to 
the  enjoyment  of  them  in  specie;  but  there  is  a  standing  rule  of  the  Court, 
for  the  benefit  of  all  parties  interested,  that  those  funds  shall  be  laid  out  in 
the  more  equal  fund,  the  £3  per  Cents.  No  party  ought  to  suffer  by  the  cir- 
cumstance, that  what  ought  to  have  been  done,  and  what  the  Court  would 
have  directed  to  be  done,  immediately  on  the  testator's  death,  was  not  done. 
The  state  of  this  question  is,  that  the  late  Lord  Chancellor  went  out  of  office 


HOWE     V.      EARL     OF     DARTMOUTH.  517 

without  having  delivered  any  opinion  upon  the  point;  and  Lord  Alvanley 
thought  he  could  not  decide  against  the  order  of  the  Lord  Chancellor ;  sup- 
posing his  Lordship  to  have  been  of  opinion,  that  there  -was  something  par- 
ticular in  this  will,  upon  the  distinction  between  the  gift  of  a  general  residue 
for  life,  with  remainder  over,  and  a  specific  bequest  of  this  sort  of  property; 
in  which  case  it  could  not  be  sold,  and  the  dividends  follow,  of  course,  from 
the  death  of  the  testator;  even  the  rule  that  takes  place  in  general  legacies, 
postponing  the  payment  of  interest  to  the  end  of  *a  year  from  the  r*9po-| 
death,  not  attaching  upon  it.  But  there  is  nothing  specific  in  this 
will.  This  is  a  mere  gift  of  the  residue  of  the  personal  estate  for  life,  subject 
to  the  payment  of  debts,  legacies,  and  annuities.  Under  every  such  will,  the 
Court  has  always  sold  this  sort  of  property,  if  there  was  any  wearing  out  fund, 
not  specifically  given,  or  any  fund  as  to  which  the  tenant  for  life  had  an  ad- 
vantage over  those  in  remainder.^  This  is  to  be  found  in  every  decree ;  and 
is  so  familiar,  that  no  report  of  such  a  case  is  to  be  met  with  in  print.  Cranch 
V.  Crunch;^  Puioell  v.  Cleaver,^  and  other  cases,  have  been  selected,  proving 

1  Gibson  v.  Bott,  7  Ves.  89. 

2  James  Cranch,  by  his  will,  dated  the  22nd  of  June,  ITOI,  after  several  legacies  to 
his  children,  gave  the  residue  of  his  money,  lands,  tenements,  goods,  chattels,  or  es- 
tates, to  his  wife  for  life,  and  after  her  death  to  be  equally  divided  among  his  children 
who  should  be  living ;  and  appointed  his  wife  executrix. 

Decree  for  an  account,  such  part  as  was  already  invested  in  Government  securities 
was  to  be  transferred  to  the  Accountant-General ;  and  the  executrix  admitting  that 
3943^,  13s.  Qd.  £5  per  Cent.  Bank  Annuities  was  standing  in  her  name,  it  was  ordered, 
that  the  same  should  be  transferred,  &c.,  and  the  dividends  paid  to  her  for  life ;  with 
liberty  for  the  plaintiffs  to  apply  at  her  decease. 

The  Master's  report,  dated  the  11th  of  July,  1797,  stated,  that  the  personal  estate  con- 
sisted of  leasehold  premises. 

By  an  order,  dated  the  24th  of  July,  1797,  it  was,  among  other  things,  ordered,  that 
the  £5  per  Cent.  Bank  Annuities,  should  be  sold,  and  the  money  laid  out  in  £3  per 
Cent.  Annuities,  the  interest  to  be  paid  to  her  for  life,  with  liberty  to  the  parties  inte- 
rested in  the  residue  after  her  death  to  apply.  An  inquiry  was  directed,  whether  it 
was  for  the  benefit  of  the  person  entitled  to  the  clear  residue  of  the  personal  estate  to 
have  the  leasehold  premises  sold  ;  and,  if  it  would  be  for  their  benefit,  it  was  ordered, 
that  they  should  be  sold ;  and  that  the  money  should  be  laid  out  in  the  £3  per  Cents. ; 
the  dividends  to  be  paid  to  her  for  life;  with  liberty  to  apply  after  her  death. 

3  John  Powell,  by  his  will,  dated  the  8th  of  August,  1775,  devised  all  his  manors 
and  real  estate  to  Cleaver  and  others  for  ninety-nine  years ;  remainder  to  Arthur  Ro- 
berts and  his  first  and  other  sons  in  tail ;  remainder  to  William  Roberts  and  his  first  and 
other  sons  in  tail  male ;  remainders  over ;  and  he  directed  his  trustees,  whom  he  also 
appointed  his  executors,  to  lay  out  the  residue  of  his  personal  estate  in  the  purchase  of 
lands,  to  be  settled  to  the  same  uses. 

The  bill  was  filed  by  the  first  tenant  for  life,  and  the  usual  decree  was  made.  By  an 
order  dated  the  21st  of  January,  1788,  552Z.  3s.  Qd.  Long  Annuities,  and  £3000  India 
Stock,  standing  in  the  testator's  name  at  his  decease,  were  directed  to  be  sold,  and  the 
produce  laid  out  in  £3  per  Cent.  Annuities ;  and  as  to  £33,610  Bank  £4  per  Cent. 
Annuities,  and  £28,897  Bank  £5  per  Cent.  Annuities,  an  inquiry  was  directed,  whether 
the  fund  of  the  testator's  estate  would  be  in  a  better  condition  by  selling  the  same  and 
investing  the  produce  in  £3  per  Cent.  Annuities  ;  and  the  Master  certifying  that  it  would, 


518  BEQUESTS     FOR     LIFE. — CONVERSION. 

the  invariable  rule  to  sell  Bank  Stock,  Long  and  Short  Annuities,  leases,  &c., 
when  the  Court  is  informed  by  the  record  of  the  nature  of  the  property.  The 
consequence  is,  the  residuary  legatee  is  not  entitled  to  anything  till  the  debts 
and  legacies  are  paid,  and  the  residue  ascertained.  An  objection  has  fre- 
quently been  made  by  an  annuitant,  when  the  executor  has  desired  to  pay  the 
r*-7r"l  *fuii<i  iiito  Court,  that  it  would  stop  the  interest.     But  an  executor 

~  makes  those  payments  at  his  peril.  The  Court  has  sometimes  ordered 
the  interest  to  be  paid  to  the  tenant  for  life;  but  that  must  be  considered  to 
have  been  without  prejudice.  In  the  instance  of  a  Short  Annuity,  the  tenant 
for  life  would  wear  out  the  thing.  Some  certain  rule  must  be  established. 
The  rights  of  the  parties  must  be  the  same  as  if  the  testator  had  converted 
the  property  immediately  before  his  death.  That  or  some  other  definite  time 
must  be  fixed  by  the  Court.  It  cannot  depend  upon  the  account,  the  acting 
of  the  executor,  &c.  The  possibility  of  collusion  between  the  tenant  for  life 
and  the  executor  must  be  attended  to.  Suppose  the  executor  was  himself 
tenant  for  life. 

Mr.  Romilly  and  Mr.  Troioer,  for  the  executors  of  Lady  Anne  Conolly,  in 
support  of  the  decree. 

The  first  question  is,  whether  Lady  Anne  Conolly  was  entitled  to  the  annual 
produce  of  the  personal  estate  at  the  death  of  the  testator  :  if  not,  the  next 
consideration  is,  whether,  the  executors  having  paid  it  to  her,  and  particularly 
the  dividends  of  the  Bank  Stock,  those  payments  ought  to  be  called  back. 

The  personal  estate  is  given  to  her  for  life  specifically.  As  this  disposition 
is  expressed,  it  is  the  same  as  if  the  testator  had  enumerated  the  particular 
articles,  of  which  the  personal  estate  consisted.  He  has  not  given  his  personal 
estate  to  his  executors,  in  trust  to  sell,  &c.,  and  that  what  remains  shall  be 
given  to  those  persons ;  but  he  has  given  the  personal  estate  to  them  specifi- 
cally, as  he  has  given  the  land.  The  Lord  Chancellor  considered,  that  there 
was  nothing  in  the  will,  which  made  it  necessary  for  the  executor  to  convert 
this  property  into  any  other  fund.  For  many  purposes  a  bequest  of  all  the 
personal  estate  is  considered  specific;  for  instance,  upon  the  question  of  ex- 
oneration, where  there  is  a  charge  of  debts.  There  is  no  doubt  of  the  general 
rule :  but  this  question  does  not  depend  upon  it.  In  the  case  put  by  your 
Lordship,  of  a  man  having  an  annuity  for  the  life  of  A.,  and  bequeathing  his 
personal  estate  to  A.  for  life,  remainder  *to  his  son,  there  was  a  clear 
L  ^  -■  intention  that  it  should  be  sold.  But  suppose  he  had  expressly  de- 
an order  was  made  on  the  21st  of  May,  1788,  for  the  sale  of  those  funds,  and  investing 
the  produce  in  the  £3  per  Cents. 

Elizabeth  Hoadley  by  her  will  bequeathed  the  residue  of  her  personal  estate  to  Dr, 
Ashe,  for  life,  and  after  his  decease  to  be  divided  among  his  children :  to  the  sons  at  the 
age  of  twenty-one  ;  to  the  daughters  at  that  age  or  marriage. 

An  order  was  made,  that  £1 1*800  Bank  £5  per  Cent.  Annuities  should  be  sold,  and 
the  produce  laid  out  in  the  £3  per  Cents. 

Similar  orders  were  made  as  to  £5  per  Cent.  Annuities  in  Chancey  v.  Rees,  Pcppin  v. 
Lovcwell,  and  Dagley  v.  Leake  ;  and  in  Griflitiis  v.  Grieve,  as  to  £4  per  Cent.  Annuities. 
Sec  Barthdomon  v.  Scholey,  as  to  Short  Annuities. 


HOWE     V.      EARL     OF     DARTMOUTH.  519 

scribed  the  annuity,  however  absurd,  it  must  be  considered  specific.  If  the 
only  property  was  £40  a  year,  barely  sufl&cient  for  a  maintenance,  and  clearly 
intended  for  that  purpose,  upon  this  principle  the  rule  must  extend  to  that 
case.  The  rule  is  founded  in  convenience ;  but  there  is  no  fixed  principle, 
that  executors  are  bound  of  necessity  to  make  the  conversion  at  the  testator's 
death,  or  any  given  time  afterwards.  The  executor  ought  not  to  change  a 
permanent  fund  producing  a  larger  interest  to  another  producing  a  smaller, 
if  such  conversion  is  not  required  for  the  payment  of  debts.  The  habit  is  to 
do  it  when  the  executor  is  called  into  this  Court,  not  where  he  is  not  called 
upon,  and  no  question  is  raised.  If  he  is  liable  to  question  for  not  doing  so, 
it  must  be  upon  the  principle  of  devastavit.  The  consequence  will  be,  that 
there  will  be  no  possibility  of  executing  a  will  without  the  direction  of  the 
Court,  if,  though  not  called  upon  by  the  remainderman,  he  must  do  it  at  his 
own  peril  immediately.  No  given  period  has  been  ascertained,  after  which 
the  remainderman  shall  have  a  right  to  call  upon  him.  The  Court  makes  the 
conversion,  but  does  not  consider  the  executor  as  having  done  wrong  in  not 
having  converted.  No  instance  can  be  found,  where  it  has  come  into  Court 
several  years  after  the  death,  and  the  executor  has  been  charged.  The  period 
of  the  conversion  in  this  instance  at  all  events  ought  to  be,  not  the  time  of  the 
testator's  death,  but  the  year  1796,  when  the  order  was  made ;  for  it  was  com- 
petent to  them  to  call  upon  the  executor  at  a  prior  time. 

The  second  question  is  of  considerable  novelty,  as  to  what  is  to  be  done  with 
the  dividends  received,  particularly  upon  the  Bank  Stock.  With  reference 
to  the  Bank  Stock,  as  distinguished  from  the  Annuities,  no  case  has  esta- 
blished, that  the  executor  had  done  wrong  by  paying  to  the  tenant  for  life  the 
interest  of  some  permanent  fund,  though  producing  more  than  if  the  property 
was  invested  in  the  £3  per  Cents. ;  and  to  make  this  party  *account  ^^.^^^  -, 
for  what  she  has  received,  that  proposition  must  be  made  out.  This  L  -  ■-  J 
must  have  often  occurred.  A  considerable  part  of  the  property  might  have 
been  out  upon  securities  at  £5  per  cent.  If  the  tenant  for  life,  to  whom  the 
interest  was  paid  by  the  executor,  died  insolvent,  would  that  be  a  devastavit  i 
No  such  decree  was  ever  made.  Upon  that  hypothesis  it  would  be  necessary 
for  the  executor  immediately  to  call  in  all  the  securities,  Bank  Stock,  India 
Stock,  mortgages,  &c.,  and  to  invest  the  whole  in  the  £3  per  Cents. 

The  Lord  Chancellor  [Eldon]  desired  the  counsel  in  reply  not  to  trouble 
himself  upon  the  point  whether  the  bequest  was  specific,  and  to  advert  to  the 
Bank  Stock. 

Mr.  Ilansjield,  in  reply. — In  this  respect  there  is  no  difi"erence  between  the 
Bank  Stock  and  the  Annuities.  The  price  is  perfectly  accidental,  and  is 
never  considered.  The  Court  says,  first.  Bank  Stock  is  the  stock  of  a  trading 
company,  not  a  government  fund,  secured  by  the  Legislature.  The  former 
also  produces  a  high  dividend,  and  is  therefore  more  liable  to  fluctuation  and 
uncertainty.  For  these  reasons,  this  Court  never  sufi'ers  those  funds  to  remain 
which  are  considered  hazardous,  and,  to  a  certain  extent,  wasteful.  The  ten- 
ant for  life  cannot  have  any  more  right  to  advantage  in  the  shape  of  that  large 


J20  BEQUESTS     FOR     LIFE.  —  CONVERSION. 


dividend,  than  of  Long  and  Short  Annuities.  The  Court  goes  further,  order- 
ing the  conversion  of  £4  per  Cents.,  a  government  fund,  probably  on  the  prin- 
ciple that  they  are  liable  to  be  redeemed,  and  not  so  permanent  a  fund.  With 
respect  to  refunding,  these  are  trustees.  Their  conduct  cannot  affect  the 
rights ;  and  it  happens  that  there  are  dividends  now  due  to  Lady  Anne 
Conolly  in  Court,  which,  if  the  decision  is  against  her,  the  executors  have  no 
objection  to  apply  to  the  refunding,  if  it  is  to  take  place.  If  an  executor  had 
ignorantly  and  honestly  made  the  payment,  the  Court  would  be  unwilling  to 
call  upon  him  ;  but  is  there  a  doubt  that  the  person  receiving  the  payments 
would  be  called  on  ?  In  a  few  years  more  these  Short  Annuities  will  expire. 
Suppose  the  whole  property  was  in  these  circumstances.  It  does  not  very 
*frequently  happen  that  any  payment  is  made  upon  the  residue  before 
L  "  -I  the  interference  of  the  Court,  which  prevents  this  accident.  Several 
orders  may,  howevei-,  be  found.  In  Holder  v.  Holder,^  an  account  was  directed 
of  all  the  excess  that  had  been  received  of  Short  Annuities  beyond  £4  per 
cent. 

Lord  Chancellor  Eldon.^ — No  question  arises  upon  this  will,  except 
whether  this  is  a  specific  bequest  of  such  personal  estate,  as  was  the  testator's 
at  the  time  of  his  death.  Lord  Rosslyn  is  represented  to  have  had  consider- 
able doubt  whether  it  was  not  specific ;  and  if  it  is,  I  agree,  not  only  Lady 
Anne  Conolly,  up  to  the  date  of  the  decree,  but  afterwards,  and  Mr.  Byng  and 
the  other  persons  in  remainder,  must  take  the  specific  produce  of  what  is 
specifically  given.  But  if  it  is  so  to  be  considered,  the  decree  is  not  correct, 
considering  the  bequest  specific  to  the  date  of  that  decree,  and  no  longer.  It 
is  wrong,  therefore,  in  any  way. 

Upon  the  question,  whether  this  is  specific,  it  must  be  either  upon  the 
words  describing  the  personal  estate,  or  upon  the  construction  of  those  words, 
coupled  with  the  devise  of  all  his  landed  estates. 

With  respect  to  the  latter,  every  devise  of  land,  whether  in  particular  or 
general  terms,  must  of  necessity  be  specific  from  this  circumstance,  that  a  man 
can  devise  only  what  he  has  at  the  time  of  devising.  Upon  that  ground,  in  a 
case  at  the  Cockpit,  it  was  held,  that  a  residuary  devisee  of  land  is  as  much  a 
specific  devisee  as  a  particular  devisee  is. 

But  it  is  quite  different  as  to  per.so?«a?  estate.  The  question  must  be,  did 
he  mean  to  dispose  of  what  he  had  at  the  date  of  the  will,  or  of  that  which  he 
should  have  at  his  death?  If  he  meant  the  former,  then  every  part  of  that 
identical  personal  estate,  which  is  disposed  of  between  the  date  of  the  will  and 
the  death,  is  a  legacy  adeemed  :  pro  tanto  it  is  gone.  If  the  question  is, 
whether  those  subjects,  to  be  acquired  between  the  date  of  his  will  and  his 
death,  should  pass,  I  cannot  say  he  *did  mean  that.  If  not  it  can  only 
*-  "  -'  be  specific  thus  :  that  the  persons  to  take  the  personal  estate  he  should 
have  at  his  death  in  different  interests  should  enjoy  it  as  he  left  it. 

Not  one  word  of  this  will  goes  to  that.     It  is  given  as  "  all  his  personal 

1  In  Chancery,  May,  1789. 


nOWE     V.      EARL     OF     DARTMOUTH.  621 

estate ;"  and  the  mode  in  which  he  says  it  is  to  be  enjoyed,  is  to  one  for  life, 
and  to  the  others  afterwards.  Then,  the  Court  says,  it  is  to  he  construed  as 
to  the  perishable  part,  so  that  one  shall  take  for  life,  and  the  other  after- 
wards;  and  unless  the  testator  directs  the  mode,  so  that  it  is  to  continue  as 
it  was,  the  Court  understands  that  it  shall  he  jmt  in  sxich  a  state,  that  the 
others  maij  enjoy  it  after  the  decease  of  the  first ;  and  the  thing  is  quite  equal; 
for  it  might  consist  of  a  vast  number  of  particulars  :  for  instance,  a  personal 
annuity,  not  to  commence  in  enjoyment  till  the  expiration  of  twenty  years 
from  the  death  of  the  testator,  payable  upon  a  contingency,  perhaps.  If,  in 
this  case,  it  is  equitable  that  Long  or  Short  Annuities  should  be  sold,  to  give 
every  one  an  equal  chance,  the  Court  acts  equally  in  the  other  case ;  for  those 
future  interests  are,  for  the  sake  of  the  tenant  for  life,  to  be  converted  into  a 
present  interest,  being  sold  immediately,  in  order  to  yield  an  immediate  inte- 
rest to  the  tenant  for  life.  As  in  the  one  case,  that  in  ichich  the  tenant  for 
life  has  too  great  an  interest,  is  melted  for  the  henefit  of  the  rest;  in  the 
other,  that,  of  which,  if  it  remained  in  specie,  he  might  never  receive  any- 
thing, is  hrought  in,  and  he  has  immediately  the  interest  of  its  present  worth. 
As  to  the  annuities  charged  upon  this  estate,  the  tenant  for  life,  if  entitled 
to  the  whole,  would  be  properly  paying  out  of  the  aggregate  property  the  an- 
nuities. But  it  would  be  great  injustice  to  those  in  remainder,  if  these  capital 
sums  were  paid  out  of  that  part  of  the  bulk  of  the  property  which  does  not 
consist  of  perishable  interests,  and  were  not  to  be  thrown  iu  proportion  upon 
the  perishable  part.  The  ordinary  rule  of  apportioning  requires,  that,  in  some 
degree,  a  provision  should  be  made  out  of  those,  the  Short  Annuities,  if  they 
remain,  and  not  out  of  the  £3  per  Cents,  only. 

*The  cases  alluded  to,  where  personal  estate  has  been  taken  to  be  r^t^o'-^-} 
specifically  given,  do  not  apply.  First,  where  a  residuary  legatee  takes  ^  ~  ^^ 
it,  [the  residue,]  as  a  specific  gift,  not  subject  to  debts,  the  inference,  that  he 
is  to  take  that  personal  estate,  is  not  made,  in  general  cases,  upon  the  bequest 
of  all  the  testator's  personal  estate,  but  upon  the  effect  of  that,  connected  with 
what  arises  out  of  other  parts  of  the  will,  with  regard  to  the  intention  to  fix 
upon  other  funds  charges  that  would  primarily  fall  upon  that  fund;  and  that 
must  be  made  out,  not  by  conjectures,  but  by  declaration  plain,  or  manifest 
intention. 1  That  is  the  principle  upon  which  it  is  agreed  these  cases  are  to 
be  construed ;  and  the  intention  has  never  been  considered  manifest  merely 
from  a  disposition  of  the  personal  estate  in  the  same  clause  with  land  ;  which, 
must  be  taken  to  be  specifically  given.  But  those  cases  da  not  go  the  length, 
that,  if  the  enjoyment  is  portioned  out  in  life  interests,  with  remainders  over, 
it  is  specific.  I  am  clearly  of  opinion,  therefore,  that  this  is  not  a  case  in 
which  the  personal  estate  is  in  this  sense  specifically  given,  with  a  direction 
that  it  shall  remain  specifically  such  as  it  was  at  the  testator's  death ;  and  the 
purposes  for  which  it  is  given  are  those  for  which  it  is  admitted  there  is  a 

1  See  Ancaster  v.  Mayer,  ante,  vol.  1,  p.  505,  and  note.  A  residuary  bequest  of  per- 
sonalty will  not  be  considered  as  specific,  merely  because  it  is  comprised  in  the  same 
clause  as  a  residuary  devise  of  land,  which  must  be  talien  to  be  specifically  given. 


522  BEQUESTS     FOR     LIFE. — CONVERSION. 


general  rule,  that  these  perishable  funds  are  to  be  converted  in  such  a  way  as 
to  produce  capital  bearing  interest. 

I  was  astonished  when  that  was  doubted.  From  general  recollection,  I  had 
considered  the  practice  to  be,  that  the  first  moment  the  observation  of  the 
Court  was  drawn  to  the  fact,  the  Court  would  not  permit  property  to  be  laid 
out,  or  to  remain  upon  such  funds,  under  a  direction  to  lay  it  out  in  govern- 
ment securities,  but  would  immediately  order  it  to  be  converted  into  that  which 
the  Court  deems,  for  the  execution  of  trusts,  a  government  security. 

I  pass  over  what  has  been  said  as  to  real  securities;  for  there  is  a  great 
difference  between  real  securities,  or  Bank  Stock,  for  instance,  and  government 
securities.  Bank  Stock  is  as  safe,  I  trust  and  believe,  as  any  government 
♦security  ;  but  it  is  not  government  security  ;  and  therefore  this  Court 
L  ""  J  does  not  lay  out,  or  leave,  the  property  in  Bank  Stock;  and  what  the 
Court  will  decree,  it  expects  from  trustees  and  executors ;  I  will  not  state  what 
the  Court  would  do,  where  executors  had  not  made  these  conversions.  That 
depends  upon  many  circumstances.  But  I  abide  by  Lord  Kenyon's  rule  in 
the  case  of  Mr.  Champion,  an  executor,  before  which  time  it  was  doubted 
whether  an  executor  could  lay  out  the  property  in  the  £3  per  Cents.  Lord 
Kenyon,  who  was  a  repository  of  valuable  knowledge,  produced  a  dictum  of 
Lord  Northington,  that  the  Court  would  protect  an  executor  in  doing  what  it 
would  order  him  to  do.     The  Court  in  this  case,  would  order  him  to  do  that. 

It  is  not  so  in  the  case  of  a  mortgage.  The  Court  would  not  permit  a  real 
security  to  be  called  in  without  an  inquiry,  whether  it  would  be  for  the  benefit 
of  every  person ;  and  it  is  accident  that  some  part  of  the  assets  will  produce 
more  interest  than  a  genuine  trust  security.  In  some  instances,  there  is  little 
doubt,  it  may  be  not  only  for  the  benefit  of  the  tenant  for  life,  but  for  the  sub- 
stantial interest  of  the  remainderman,  that  the  property  should  not  be  shifted 
from  a  good  real  security. 

The  question  then  is,  whether  the  Court  will  change  the  fund,  not  as 
between  the  remainderman  and  the  executor,  but  in  a  question  between  the 
tenant  for  life  and  the  remainderman  ;  and  the  question  with  the  executor 
cannot  well  arise,  so  as  to  be  acted  upon,  till  a  failure  by  the  tenant  for  life,  or 
those  who  represent  him;  for  the  justice  of  the  case,  if  the  tenant  for  life  has 
received  so  much,  would  be,  that  he  should  bring  it  back  in  case  of  the  exe- 
cutor, who  paid  him.  If  the  rule  is,  that  the  fund  shall  not  remain,  it  is  im- 
possible to  say,  the  date  of  the  decree  shall  decide.  I  do  not  like  to  put  it 
upon  the  possibility  of  collusion ;  but  that  is  not  to  be  totally  neglected,  for  it 
may  happen,  that  the  executor  himself  may  be  the  tenant  for  life,  and  then  he 
has  an  interest  in  delay.  Of  necessity  there  must  be  a  great  delay,  before 
there  can  be  a  final  decree  in  a  cause  of  great  property,  *and  it  may  be 
L  "'  J  very  much  protracted  where  there  is  an  interest.  However,  I  do  not 
put  it  upon  that.  But  if  the  principle  is,  that  the  Court,  when  its  observation 
is  thrown  upon  it,  will  order  the  conversion,  it  ought  to  be  considered,  to  all 
practicable  purposes  as  converted,  when  it  could  be  first  converted.  That  is 
the  genuine  inference  from  the  other  principle.     If  the  Court  has  ever  attended 


HOWE     V.     EARL     OF     DARTMOUTH.  523 

to  the  difficulties  often  thrown  hefore  it,  with  regard  to  perishable  property  of 
other  kinds,  as  leasehold  estate,^  &c.,  it  never  has  as  to  stock.  You  can  learn 
the  price  at  which  it  might  be  converted  on  any  day,  and  the  moment  the 
Court  was  ordered  by  the  Legislature  to  lay  out  its  funds  in  stock,  it  necessarily 
held,  that  for  this  purpose  stock  must  always  be  considered  of  the  same  value. 
It  is  for  the  benefit  of  the  creditor  that  it  should  be  thrown  into  a  lasting  fund ; 
and  it  is  equal  to  all  the  parties  interested.  As  to  Bank  Stock,  the  Court  has 
ordered  £4  per  Cents,  and  £5  per  Cents,  to  be  sold  and  converted  into  £3  per 
Cents.,  upon  this  ground,  that,  however  likely,  or  not,  that  they  may  be  re- 
deemed, the  Court  looks  at  them  as  a  fund  that  is  not  permanent,  though  it 
may  remain  forever;  and  considers,  that  from  that  quality  there  is  an  advan- 
tage to  the  present  holder,  who  gets  more  interest,  because  they  are  liable  to 
be  redeemed.  I  do  not  know  whether  the  reasoning  is  as  just  in  practice  as 
it  is  in  theory.  Property  cannot  be  laid  out  by  this  Court  in  Bank  Stock  in 
the  execution  of  a  trust  to  lay  it  out  in  government  securities,  for  it  is  not  a 
government  security.  Converting  that,  therefore,  the  executors  would  have 
done  what  this  Court  would  have  ordered,  and  that  falls  under  the  same  con- 
sideration, and  the  advantage,  if  any,  ought  not  to  accrue  to  the  tenant  for 
life.  The  account,  therefore,  must  go  as  to  that,  as  well  as  the  Long  and 
Short  Annuities,  yVoTJi  the  time  at  which  it  would  have  been  converted,  if  the 
observation  of  the  Court  had  been  drawn  to  the  fact  that  the  executors  were 
possessed  of  those  funds. 

This  petition  of  rehearing  is  therefore  well  founded. 


*Where  property  of  a  perishable  or  wasting  nature,  such  as  Long  p^.,„--, 
Annuities  or  leaseholds,  is  given  to  persons  in  succession,  an  impor-  L  -"  J 
tant  question  arises,  whether  it  is  to  be  converted  into  other  property  of  a 
permanent  nature,  so  as  to  insure  the  enjoyment  of  it  by  each  person  succes- 
sively, or  whether  it  is  to  remain  in  specie  unconverted,  leaving  to  those  in 
remainder  only  a  chance  of  enjoyment,  or  at  all  events  of  taking  the  property 
much  diminished  in  value.  It  was  decided  by  Lord  Eldon,  in  the  principal 
case,  which  appears  to  be  the  first  reported  case  in  which  the  subject  was 
thoroughly  discussed,  that,  as  a  general  rule,  (and  in  the  absence  of  any  ex- 
press or  implied  intention  of  the  testator,  that  it  is  to  be  enjoyed  in  specie,) 
perishable  property  is  to  be  converted  in  such  a  way  as  to  produce  capital 
bearing  interest,  and  put  in  such  a  state  that  the  others  may  enjoy  it  after  the 
decease  of  the  first.  Upon  the  same  principle,  Lord  Eldon  lays  it  down,  that 
reversionary  property,  (a  personal  annuity,  for  instance,)  not  to  commence  till 
the  expiration  of  twenty  years  from  the  death  of  the  testator,  or  payable  on 
a  contingency,  given  to  persons  in  succession,  ought  to  be  similarly  converted. 
"  If,  in  the  one  case,"  observes  his  Lordship,  "  it  is  equitable,  that  Long  or 
Short  Annuities  should  be  sold^  to  give  every  one  an  equal  chance,  the  Court 

1  Gibson  v.  Bott,  7  Ves.  89.  The  court  in  laying  out  money  in  the  funds  does  not 
attend  to  the  diffcreuce  in  the  price  of  stock. 


524  BEQUESTS     FOR     LIFE.  —  CONVERSION. 

acts  equally  in  the  other  case ;  for  those  future  interests  are,  for  the  sake  of 
the  tenant  for  life,  to  be  converted  into  a  present  interest,  being  sold  imme- 
diately, in  order  to  yield  an  immediate  interest  to  the  tenant  for  life.  As  in 
the  one  case,  that  in  which  the  tenant  for  life  has  too  great  an  interest,  is 
melted  for  the  benefit  of  the  rest;  in  the  other,  that  of  which,  if  it  remained 
in  specie,  he  might  never  receive  anything,  is  brought  in,  and  he  has  imme- 
diately the  interest  of  its  present  worth."  Ante,  p.  271.  And  see  the  re- 
marks of  Lord  Brougham  in  Prendergast  v.  I'rendergnst,  3  H.  L.  C.  218 ; 
Wiglitickk  V.  Lord,  8  Jur.  N.  S.  699;  S.  C.  nom.  Lord  v.  IViglKwick,  4  De 
G.  Mac.  &  G.  803. 

"  Very  nice  distinctions,"  observes  Lord  Cottenham,  "have  been  taken, 
and  must  have  been  taken,  in  determining  whether  the  tenant  for  life  is  to 
have  the  income  of  the  property  in  the  state  in  which  it  is  at  the  time  of  the 
testator's  death,  or  the  income  of  the  produce  of  the  conversion  of  the  pro- 
perty. The  principle  upon  which  all  the  cases  on  the  subject  tui'n  is  clear 
enough,  although  its  application  is  not  always  very  easy. 

"  All  that  Iloive  v.  Lord  Dartmouth  decided — and  that  was  not  the  first 
decision  to  the  same  effect — is,  that  where  the  residue  or  bulk  of  the  property 
is  left  en  masse,  and  it  is  given  to  several  persons  in  succession  as  tenants 
*for  life  and  remaindermen,  it  is  the  duty  of  the  Court  to  carry  into 
L  "'  -I  effect  the  apparent  intention  of  the  testator.  How  is  the  apparent 
intention  to  be  ascertained,  if  the  testator  has  given  no  particular  directions  ? 
If,  although  he  has  given  no  directions  at  all,  yet  he  has  carved  out  parts  of 
the  property  to  be  enjoyed  in  strict  settlement  by  certain  persons,  it  is  evident 
that  the  property  must  be  put  in  such  a  state  as  will  allow  of  its  being  so  en- 
joyed. That  cannot  be,  unless  it  is  taken  out  of  a  temporary  fund,  and  put 
into  a  permanent  fund. 

"  But  that  is  merely  an  inference  from  the  mode  in  which  the  property  is 
to  be  enjoyed,  if  no  direction  is  given  as  to  how  the  property  is  to  be  managed. 
It  is  equally  clear,  that  if  a  person  gives  certain  property  specifically  to  one 
person  for  life,  with  remainder  over  afterwards,  then,  although  there  is  a  dan- 
ger that  one  object  of  his  bounty  will  be  defeated  by  tlie  tenancy  for  life  last- 
ing as  long  as  the  property  endures,  yet  there  is  a  manifestation  of  intention 
which  the  Court  cannot  overlook. 

"  If  a  testator  gives  leasehold  property  to  one  for  life,  with  remainder  after- 
wards, he  is  the  best  judge  whether  the  remainderman  is  to  enjoy.  The  in- 
tention is  the  other  way,  so  far  as  it  is  declared ;  and  the  terms  of  a  gift,  as 
a  declaration  of  intention,  preclude  the  Court  from  considering  that  he  might 
have  meant  that  it  should  be  converted. 

"  Those  two  kinds  of  cases  are  free  from  difficulty;  but  other  cases  of  very 
great  difficulty  may  occur,  in  which  it  may  be  very  doubtful  whether  the  tes- 
tator has  left  property  specifically,  but  in  which  there  are  expressions  which 
raise  the  question,  whether  the  property  is  not  to  be  enjoyed  specifically;  for, 
as  the  Master  of  the  llolls  appears  to  have  observed  in  the  present  case,  the 
word  'specific/  when  used  in  speaking  of  cases  of  this  sort,  is  not  to  be  taken 


HOWE     V.     EARL     OF     DARTMOUTH.  525 

as  used  in  its  strictest  sense,  but  as  implying  a  question  whether,  upon  the 
whole,  the  testator  intended  that  the  property  should  be  enjoyed  in  specie. 
Those  are  questions  of  difficulty,  because  the  Court  has  to  find  out  what  was 
the  intention  of  the  testator  as  to  the  mode  of  management,  and  as  to  the 
mode  of  enjoyment :"  Pichering  v.  Pickering,  4  My.  &  Cr.  298. 

The  result  of  the  rule  laid  down  by  Lord  Eldon,  in  Howe  v.  Lord  Dnrt- 
mouth,  and  by  Lord  Cottenham,  in  Pickering  v.  Pickering,  appears  to  be, 
that  where  personal  estate  is  given  in  terms  amounting  to  a  general  residuary 
bequest,  to  be  enjoyed  by  persons  in  succession,  the  interpretation  the  Court 
puts  upon  the  bequest  is,  that  the  persons  indicated  are  to  enjoy  the  same 
thing  in  succession ;  and  in  order  to  effectuate  that  intention,  the  Court,  as  a 
general  rule,  converts  *into  permanent  investments  so  much  of  the 
personalty  as  is  of  a  wasting  or  perishable  nature  at  the  death  of  the  L  •"  J 
testator,  and  also  reversionary  interests.  The  rule  did  not  originally  ascribe 
to  testators  the  intention  to  effect  such  conversions,  except  in  so  far  as  a  testa- 
tor maybe  supposed  to  intend  that  which  the  law  will  do;  but  the  Court, 
finding  the  intention  of  the  testator  to  be,  that  the  objects  of  his  bounty  shall 
take  successive  interests  in  one  and  the  same  thing,  converts  the  property,  as 
the  only  means  of  giving  effect  to  that  intention :  Per  Sir  J.  Wigram,  V.  C, 
3  Hare,  611. 

A  few  instances  may  be  given  of  the  application  of  the  rule  laid  down  in 
the  principal  case. 

In  Fearns  v.  Young,  9  Ves.  549,  the  testator  bequeathed  to  his  wife  the  in- 
terest of  one-half  of  his  property  during  her  life,  with  liberty  to  dispose  of 
one-half  of  the  said  half  as  she  might  think  proper,  at  her  decease;  the  other 
half  of  that  half  should  devolve  at  her  decease  to  his  daughter;  and  the  other 
half  of  his  said  property  he  bequeathed  to  his  said  daughter.  The  testator 
was  member  of  a  partnership,  the  term  of  which  expired  thirteen  months  after 
his  decease,  and  his  proportion  of  the  profits  during  that  time  amounted  to 
the  sum  of  2070?.  13s.,  which,  according  to  the  articles,  was  payable,  one-half 
at  the  end  of  one  year,  and  the  other  at  the  end  of  two  years  after  the  termi- 
nation of  the  partnership.  Lord  Eldon  allowed  an  exception  to  the  Master's 
report,  who  had  allowed  the  claim  of  the  widow  to  1035?.  6s.  6c?.,  a  moiety  of 
the  sum  of  2070?.  13s.  as  being  due  to  her  in  the  nature  of  interest  money 
accrued  due  after  the  death  of  the  testator.  "  The  rule,"  said  his  Lordship, 
"  as  to  personal  estate,  is,  that  what  is  not  specifically  given,  and  consists  of 
an  interest  wearing  out,  or  an  interest  at  present  saleable,  but  in  point  of  en- 
joyment future,  the  whole  is  converted  into  money  in  a  question  between  the 
tenant  for  life  and  the  remainderman  ;  and,  though  the  general  rule  as  to 
legatees  is  to  give  interest  from  the  end  of  one  year  from  the  death,  I  have 
seen  a  great  variety  of  decrees,  directing  inquiries,  how  much  of  the  fund  had 
arisen  from  interest,  and  how  much  from  capital ;  in  order  to  determine  be- 
tween the  tenant  for  life  and  the  remainderman.  In  this  case,  it  is  impossible 
to  say  the  widow  is  to  have  nothing  in  the  nature  of  interest  upon  the  capital 
so  formed  at  the  end  of  thirteen  months,  on  account  of  the  times  of  payment 


526  BEQUESTS     FOR     LIFE.  —  COXVERSIOX. 

at  the  end  of  two  and  three  years ;  for  it  is  clear,  if  the  testator  had  died 
possessed  of  a  bond,  by  the  condition  of  which  the  money  had  been  secured 
to  him,  to  be  paid  in  two  and  three  years  after  his  death,  without  interest, 
between  the  tenant  for  life  and  the  remainderman,  a  vahie  must  have 
*been  set  upon  it  at  that  time,  and  of  its  present  worth,  at  least  the 
«-  "■  -I  tenant  for  life  would  be  entitled  to  interest.  It  is  like  a  lease,  to 
commence  at  the  end  of  one  or  two  years  afterwards;  but  it  is  saleable  imme- 
diately, and  the  sum  produced  would  be  a  capital ;  the  interest  of  which,  from 
the  end  of  one  year,  at  least,  ought  to  go  to  the  tenant  for  life. 

"  In  this  case,  then,  the  balance  being  ascertained  at  the  end  of  thirteen 
months,  the  tenant  for  life  must  at  least  have  interest  upon  such  a  sum  as  was 
at  that  time  the  value  of  the  sum  so  ascertained;  regard  being  had  to  the  fact 
of  the  payment  in  moieties  at  the  end  of  one  and  two  years  from  that  time. 
As  to  the  year  in  which  the  profit  was  making,  there  is  great  difficulty ;  but, 
if  the  rule  is,  that  between  tenant  for  life  and  remainderman,  the  former  is 
entitled  to  what  is  actually  produced,  as  interest  from  the  death,  it  would  be 
very  hard  upon  the  widow,  that,  as  it  was  employed  in  trade,  and  making  a 
great  deal  more  than  four  or  five  per  cent.,  she  shall  not  have  either  the  profit 
or  the  interest.  It  is  fair,  that,  if  he  bound  himself  to  leave  his  capital  in  a 
trade,  for  the  purpose  of  increase,  still  the  value  of  the  capital  at  the  death, 
with  the  additional  capital,  whatever  it  might  be  ultimately,  in  consequence 
of  being  so  employed,  should  yield  an  interest.  It  is  not  very  well  settled, 
whether  the  tenant  for  life  is  entitled  to  the  interest  from  the  death,  or  from 
a  year  afterwards.  Baron  Thompson  once  told  me,  that  the  first  payment  of 
an  annuity  was  made  at  the  end  of  a  year,  and  so  I  took  it :  but,  at  that  time, 
the  opinion  of  several  of  the  Masters  was,  that  it  was  not  to  be  paid  until 
two  years ;  and  an  annuitant  is  no  more  than  tenant  for  life  of  part  of  the 
capital. 

"  In  this  case,  I  think,  the  defendant  ought  to  have  from  the  death,  to  the 
termination  of  the  partnership,  interest  at  a  given  rate,  and  not  the  profit; 
and  then,  at  the  end  of  the  partnership,  the  capital,  by  the  articles,  was  a 
dead  fund,  in  moieties  for  one  and  two  years ;  but  she  is  not,  therefore,  to  be 
deprived  of  interest  upon  it,  but  is  entitled  to  interest  upon  the  capital,  though 
dead,  with  reference  to  the  circumstance,  that  one-half  is  not  to  be  collected 
till  the  end  of  one  year,  the  other  not  till  the  end  of  two  years,  calculating 
what  was  then  the  value  of  the  sums  respectively;  for  instance,  the  value  of 
£1000,  payable  at  the  end  of  one  year,  and  another  sum  of  £1000,  payable 
at  the  end  of  two  years.  The  exception,  therefore,  must  be  allowed ;  and 
the  minutes  must  be  arranged  upon  that  principle." 

In  Mills  V.  Millsy  7  Sim.  501,  the  testator  gave  all  his  freehold  and  lease- 
hold mes.suages,  lands,  and  hereditaments,  ready  money,  securities  for  money, 
stock  in  the  public  funds,  goods,  chattels,  and  effects,  and  all  other  his  real  and 
^„„,  -,  *personal  estate  and  effects,  to  trustees,  in  trust  to  pay  the  rents  of 
L  "  ■  -I  his  freehold  and  leasehold  estates,  and  the  dividends,  interests,  and 
proceeds  of  his  money  in  the  funds  and  other  his  said  personal  estate,  to  his 


HOWE     V.     EAllL     OF     DARTMOUTH.  527 

daughter  for  life;  and  after  her  death,  to  stand  possessed  of  his  said  freehold 
and  leasehold  estates,  money  in  the  funds,  and  all  other  his  said  real  and  per- 
sonal estate,  for  the  children  of  his  daughter.  The  testator,  at  the  date  of 
his  will,  and  at  his  death,  was  possessed  of  leasehold  estates,  turnpike  securi- 
ties. Bank  Stock,  and  other  personal  estate.  It  was  held  by  Sir  L.  Shadwell, 
V.  C,  that  the  bequest  to  the  trustees  was  a  general  residuary  bequest,  and 
that  the  leaseholds  and  Bank  Stock  ought  to  be  sold,  and  the  proceeds  invested 
in  the  Three  per  Cents, ;  and  an  inquiry  was  directed,  whether  the  turnpike 
securities  were  real  and  permanent  securities. 

In  Fryer  v.  Buttar,  8  Sim.  442,  the  testator  gave  to  M.  W.  an  annuity  of 
£40  for  life,  payable  out  of  his  Long  Annuities;  and  directed,  that  at  M.  W.'s 
death  the  principal  out  of  which  the  annuity  arose  should  go  to  his  next  of 
kin  then  living;  and  he  further  directed,  that  the  annuity  should  be  secured 
on  his  stock  of  Long  Annuities.  The  testator  died  possessed  of  £509  Long 
Annuities.  Sir  L.  Shadwell,  V.  C,  held,  that  a  fund  for  payment  of  the  an- 
nuity ought  to  be  provided  in  the  Three  per  Cents.,  and  that  the  money  re- 
quired for  that  purpose  ought  to  be  raised  by  the  sale  of  part  of  the  Long 
Annuities,  and  that  the  remainder  of  the  Long  Annuities  formed  part  of  the 
testator's  residuary  estate. 

In  Benn  v.  Dixon,  10  Sim.  636,  the  testator  gave  to  his  wife  the  whole  of 
the  interest  arising  from  his  property,  both  real  and  personal,  during  her  life; 
and  in  case  he  should  die  without  issue,  he  gave,  after  the  death  of  his  wife, 
the  whole  of  his  property,  both  real  and  personal,  to  his  brothers  and  sister. 
The  testator  died  possessed  of  leasehold,  and  was  also  seised  of  real  estate.  It 
was  held  by  Sir  L.  Shadwell,  V.  C,  that  the  widow  was  not  entitled  to  the 
leasehold  property  in  specie  during  her  life,  but  only  to  the  dividends  of  stock 
to  be  purchased  with  the  proceeds  of  the  sale  of  it.  "  As  the  will  stands," 
said  his  Honor,  ''  there  is  nothing  on  the  face  of  it  to  prevent  the  application 
of  the  rule  of  law  that  perishable  property  must  be  sold  and  converted  into 
money,  and  invested  in  the  funds,  in  order  to  produce  the  same  interest  to  the 
remainderman  as  was  enjoyed  by  the  tenant  for  life."  And  see  Lichfield  v. 
Baker,  2  Beav.  481 ;  Sutherland  v.  Cooke,  1  Coll.  498  ;  Pickup  v.  Atkinson, 
2  Hare,  625  ;  Caldecott  v.  Caldecott,  1  Y.  &  C.  C.  C.  312;  Johnson  v.  John- 
son, 2  Coll.  441 ;  Chambers  v.  Chambers,  15  Sim.  183  ;  Lichfield  v.  Baker, 
13  Beav.  447  ;  Morgan  v.  Morgan,  14  Beav.  *72  ;  Hood  v.  Clapham,  r^ic^oA-i 
19  Beav.  90 ;  Jebb  v.  Tugicell,  20  Beav.  84 ;  Blann  v.  Bell,  5  De  *-  "  ^ 
Gex  &  Sm.  658 ;  2  De  G.  Mac.  &  G.  775. 

Where  perishable,  wasting,  or  reversionary  property  is  given  to  persons  in  suc- 
cession specifically,  in  the  strict  sense  of  that  term,  then  there  can  be  ne  reason 
for  converting  it.  Thus,  in  Lord  v.  Godfrey,  4  Madd.  455,  the  testator  be- 
queathed the  residue  of  the  stocks  and  funds  then  or  at  his  decease  standing 
in  his  name,  after  payment  of  his  debts,  to  trustees,  to  pay  the  interest  and 
dividends  to  his  wife  for  life,  with  remainder  to  C.  L.,  and  empowered  his 
trustees,  at  their  discretion,  to  change  the  stock  as  often  as  to  them  should 
seem  fit  and  proper.     At  the   testator's  death  there  were  Long  Annuities 


528  BEQUESTS     FOR     LIFE.  —  CONVERSION. 

standing  in  tis  name,  producing  £365  per  annum.  Sir  J.  Leach,  V.  C, 
held,  that  the  widow  was  entitled  to  enjoy  the  Long  Annuities  in  specie.  "  It 
would,  I  think,"  said  his  Honor,  "  be  too  much  to  intend  that  the  testator 
meant  to  authorize  the  trustees,  at  their  pleasure,  to  di)uiiiish  the  gift  he  had 
before  made  to  his  wife.  Such  a  power  is  given  to  trustees  with  a  view  to  the 
security  of  the  property,  and  not  with  a  view  to  vary  or  affect  the  relative  rights 
of  the  legatees."  And  see  Betlmme  v.  Kennedy,  1  My.  &  Cr.  114  ;  Evans  v. 
Jones,  2  Coll.  51G;  Marshall  v.  Bremner,  2  Sm.  &  Gr.  237;  Mills  v.  Broion, 
21  Beav.  1 ;  Ficldlmj  v.  Preston,  5  W.  R.  851. 

If  an  intention  can  be  collected  from  the  will,  that  property  shall  be  enjoyed 
in  specie,  as  it  existed  at  the  death  of  the  testator,  although  the  property  be 
not,  in  a  technical  sense,  specifically  bequeathed,  it  ought  not  to  be  converted. 
And  it  has  been  observed  by  the  Vice-Chancellor,  Wigrara,  in  Ilinves  v.  Hinves, 
3  Hare,  611,  that,  in  the  more  modern  cases,  (unless,  perhaps,  the  decisions  of 
the  Vice-Chancellor  of  England,  in  3Itlls  v.  31ills  and  Benn  v.  Dixon  must  be 
excepted,)  the  Court,  in  applying  the  rule,  has  leant  against  conversion  as 
strongly  as  is  consistent  with  the  supposition  that  the  rule  itself  is  well  founded. 
See  also  MacJcie  v.  3fac7cte,  5  Hare,  70,  77. 

Thus  it  has  been  held,  that  an  express  direction  for  sale  at  a  particular 
period,  indicates  an  intention  that  there  should  be  no  previous  sale  or  conver- 
sion :  Alcock  V.  Slojjer,  2  My.  &  K.  699 ;  Daniel  v.  Warren,  2  Y.  &  C.  C.  C. 
290. 

And  where  the  trust  of  a  residue  was  to  pay  the  rents,  issues,  profits,  and 
annual  proceeds  to  persons  in  succession,  and  it  appeared  that  the  testator  had 
no  other  property  except  leaseholds,  to  which  the  term  "  rents"  was  applicable, 
Lord  Langdale  held,  the  testator  did  not  intend  the  leaseholds  to  be  converted, 
saying,  that  he  could  not  declare  it  to  be  a  case  of  conversion  Avithout  striking 
out  altogether  the  word  "  rents,"  which  was  twice  repeated  in  the  will  :  Good- 
r*'?«n  ^"^^5'^^  ^'  Tremamondo,  2  *Beav.  512.  And  see  Alcock  v.  Sloj^er,  2 
^  "  My.  &  K.  699 ;  in  which  case  Sir  John  Leach,  with  regard  to  a  general 
residuary  bequest,  upon  trust  to  permit  the  testator's  widow  to  receive  the 
rents,  profits,  dividends,  and  annual  proceeds  thereof,  for  life,  held,  that  the 
word  "  dividends"  had  reference  to  Long  Annuities,  of  which  part  of  the  tes- 
tator's estate  consisted,  and  that  the  use  of  the  word  "  dividends"  was  equiva- 
lent to  a  direction  that  the  widow  should  enjoy  the  Long  Annuities  in  specie. 

These  decisions  were  commented  on  by  Sir  James  Wigram,  V.  C,  in  Pickup 
V.  Atkinson,  4  Hare,  624 ;  and  although  he  appears  to  admit  that  some  weight 
was  given  to  the  words  "rents"  and  "  dividends,"  he  considers  that  they  de- 
pended also  upon  other  circumstances.  In  that  case,  where  the  testator  died 
possessed  of  leaseholds.  Long  Annuities,  and  3^.  bs.  per  Cent.  Annuities,  and 
ready  money,  he  held,  that  a  bequest  of  the  rents  and  profits,  dividends,  and 
interest  of  a  residue,  comprising  that  property,  did  not  indicate  an  intention 
that  it  was  to  be  enjoyed  in  specie;  he  thought  that  the  correct  reasoning  upon 
those  words,  considered  alone,  must  be  analogous  to  that  which  is  applied  to  the 
residue  itself.     The  mere  enumeration  of  particulars  in  the  latter  case  does 


HOWE     V.     EARL     OF     DARTMOUTH.  529 

not  give  a  specific  character  to  the  bequest,  because  the  whole  clause  is,  in 
effect,  a  mere  residuary  bequest.  He  thought  the  same  observation  applied 
to  a  case  like  that;  the  enumeration  of  the  particulars  of  income  being  nothing 
more  than  a  gift  of  the  income  of  the  residue,  which  means  income  only. 
That  conclusion  appeared  to  his  Honor  to  be  put  beyond  dispute,  when  it  was 
considered  that  the  words  '*  rents,  profits,  dividends,  and  interest,"  in  that 
case  meant  rents,  profits,  dividends,  and  interest,  not  of  the  property  the  tes- 
tator then  had,  but  of  such  property,  real,  personal,  or  mixed,  as  he  might 
happen  to  have  at  the  time  of  his  death.  The  same  conclusion  arose  from  the 
words  of  the  gift  over,  namely,  'Hhe  whole  of  such  residue  of  my  said 
property."  However,  in  Cafe  v.  Bent,  5  Hare,  36,  where  there  was  a  direc- 
tion, which  referred  to  the  general  residue  of  the  estate,  (which  included 
leaseholds,)  and  not  to  leaseholds  specifically  bequeathed,  that  the  trustees 
should  retain  a  per  centage  on  the  rents  to  be  collected,  his  Honor  held  the 
direction,  fortified  by  other  expressions  in  the  will,  was  evidence  that  the  tes- 
tator contemplated  the  enjoyment  in  specie  of  the  leasehold  property  com- 
prised in  the  general  residue,  by  the  legatees.  ''  Although  this  direction," 
he  observed,  "  might  perhaps  be  satisfied  by  applying  it  to  such  rents  and 
profits  of  those  leaseholds  as  should  arise  before  a  sale,  I  think  the  cases  of 
Pickering  v.  Pickering,  and  Gooclenough  v.  Tremamondo,  are  authorities  for 
*putting  a  more  precise  construction  on  the  word  '  rents/  and  for  r<^.i)Q<}-] 
holding  that  this  will  carries  intrinsic  evidence  that  the  testator  con- 
templated the  enjoyment  in  specie  of  the  leaseholds  in  question.  This  conclu- 
sion is  fortified  by  the  other  circumstances  to  which  I  have  referred,  although 
those  circumstances,  standing  alone,  would  not,  in  my  judgment,  have  been 
sufficient  evidence  of  the  same  intention.  I  have  gone  at  some  length  into 
this  question,  because  I  consider  myself  bound  by  Howe  v.  Lord  Dartmouth, 
except  where  I  can  find  a  necessary  implication  to  the  contrary."  The  cir- 
cumstances referred  to  by  his  Honor  were  a  power  of  leasing,  which  he  thought 
might  apply  to  the  leaseholds  specifically  bequeathed,  and  a  direction  to  sell 
particular  parts  of  the  personal  estate ;  with  regard  to  which,  the  inference  had 
been  drawn  in  argument,  that  the  testator  did  not  intend  his  residuary  estate 
to  be  sold.  His  Honor  observed,  that,  standing  alone,  it  would  have  no  effect 
on  his  mind ;  that  the  rule  in  Ilotce  v.  Lord  Dartmouth  did  not  proceed  upon 
the  assumption  that  the  testator  intended  his  property  to  be  sold,  except  so  far 
as  a  testator  might  be  presumed  to  intend  that  which  the  law  will  imply  from 
the  directions  in  his  will.  That  the  rule  proceeded  upon  this,  that  the  testa- 
tor has  intended  the  enjoyment  of  perishable  property  by  different  persons  in 
succession ;  and  this  the  Court  could  only  accomplish  by  means  of  a  sale.  To 
this  also  might  be  added  the  consideration,  that  the  argument  might  prove  too 
much ;  for  it  would  prove,  (if  it  proved  anything,)  that  no  part  of  the  residu- 
ary estate  was  to  be  sold, — a  length  to  which  it  would  be  extremely  difficult 
to  carry  the  argument  with  success.  See  Huiit  v.  Scott,  1  De  G.  &  S.  219 ; 
Howe  V.  Moice,  14  Jur.  359 ;  Burton  v.  Mount,  2  De  G.  &  Sm.  383 ;  Crowe  v. 
Crisford,  IT  Beav.  507  ;  Blann  v.  Bell,  5  De  G.  &  Sm.  658  ;  2  De  G.  Mac.  & 

VOL.  II. — 34 


)30  BEQUESTS     FOR     LIFE. — CONVERSION. 


Gr.  775;  Harris  V.  Poyner,  1  Drew.  174;  lUnd  v.  Sdhy,  22  Beav.  373; 
Wearinfj  v.  Wearing,  23  Beav.  99;  Boicden  v.  Bowden,  17  Sim.  6"5 ;  Skirv- 
ing  V.  \VilUams,  3  Jur.  N.  S.  927. 

Where,  however,  there  was  an  express  trust  to  convert  the  residuary  per- 
sonal estate  into  money,  immediately  after  the  testator's  death,  and  to  invest 
the  amount  "  in  the  Bank  of  England,"  it  was  held  that  a  mere  direction  to 
permit  a  person  to  receive  all  the  rents  and  profits,  dividends,  or  annual  pro- 
duce of  his  personal  estate  for  life  for  his  own  use,  was  not  sufficient  to  qualify 
the  direction  to  convert,  and  authorize  the  trustees  to  pay  the  tenant  for  life 
the  dividends  of  the  Long  Annuities  in  specie  :  Bate  v.  Hooper,  5  De  G. 
Mac.  &  G.  338,  344. 

In  Neville  v.  Fortescue,  16  Sim.  333,  a  testator  bequeathed  all  his  personal 
#QQQn  property  by  reference  to  limitations  of  real  estate  in  strict  ^settlement, 
'-  *"  -^  and  then  directed  that  the  persons  entitled  under  the  limitations 
should,  under  letters  of  attorney  and  powers  from  the  trustees,  (which  he  em- 
powered and  required  them  to  grant,)  receive  the  yearly  dividends  which 
mi"-ht  arise  out  of  the  public  or  other  funds,  and  the  yearly  interest  which 
might  arise  from  other  parts  of  his  personal  property,  under  the  same  restric- 
tions and  limitations,  and  to  the  same  extent  on  which  they  held  his  real 
estates.  Sir  L.  Shadwell,  V.  C,  held,  that  the  tenant  for  life  was  entitled  to 
the  enjoyment  of  Long  Annuities  and  Bank  Stock  in  specie.  "  The  testator," 
observed  his  Honor,  "  contemplated  that  various  powers  of  attorney  might  be 
necessary  to  be  executed  by  his  trustees,  in  order  to  enable  the  persons  who 
were  to  enjoy  his  personal  estate  in  succession  to  receive  the  annual  proceeds  of 
it.  This  seems  to  me  to  demonstrate  that  he  intended  the  cestuis  que  trust 
to  enjoy  his  personal  estate  in  the  state  in  which  it  might  be  at  the  time  of 
his  death." 

A  direction  to  divide  property  after  the  death  of  the  tenant  for  life,  has  been 
held  to  indicate  an  intention  that  the  tenant  for  life  should  enjoy  the  property 
in  specie  :  Collins  v.  Collins,  2  My.  &  K.  703.  And  see  Betkuney.  Kennedi/, 
1  My.  &  CI.  114 ;  Pickering  v.  Pickering,  2  Beav.  31 ;  4  My.  &  Cr.  289, 
300  ;  Vaughan  v.  Buck,  1  Ph.  75  ;  Oakcs  v.  Strachey,  13  Sim.  414 ;  Daniel 
V.  Warren,  2  Y.  &  C.  C.  C.  290;  Huhhard  v.  Yonge,  10  Beav.  203;  House  v. 
Way,  12  Jur.  958.  The  Vice-Chancellor  Wigram,  however,  has  observed, 
that  he  could  not  understand  how  a  direction  to  divide  could  help  the  Court 
to  determine  what  was  to  be  divided;  and  he  did  not  think  that  Collins  v. 
Collins,  turned  on  that :  Pickiq)  v.  Atkinson,  4  Hare,  630.  And  it  must  be 
remarked,  that,  in  some  of  the  older  cases,  and  in  3Iills  v.  3fills,  7  Sim.  501, 
the  direction  to  divide  was  not  noticed  as  in  any  way  indicative  of  the  testa- 
tor's intention. 

The  tenant  for  life  of  wasting  property,  as  leaseholds  wrongfully  converted, 
will  be  absolutely  entitled  to'  the  produce,  should  he  survive  the  duration  of 
the  term  :  Plullips  v.  Sargnit,  7  llare,  33. 

Where  property  tlic  subject-matter  of  a  bequest  given  to  persons  in  suc- 
cession, is  found  by  the  trustees  of  a  testator  to  be  so  laid  out  as  to  be  secure, 


HOWE     V.      EARL     OF     DARTMOUTH. 


531 


and  to  produce  a  large  annual  income,  but  is  not  capable  of  immediate  conver- 
sion without  loss  and  damage  to  the  estate;  there  the  rule  is  not  to  convert  the 
property,  but  to  set  a  value  upon  it,  and  to  give  the  tenant  for  life  £i  per  cent, 
on  such  value,  and  the  residue  of  the  income  must  then  be  invested,  and  the 
income  of  the  investment  paid  to  the  tenant  for  life,  but  the  corpus  must  be 
secured  for  the  remainderman.  See  Gibson  v.  *Bott,  7  Ves.  89  ; 
Caldecott  V.  Caldecott,  1  Y.  &  C.  C.  C.  312  ;  Meyer  v.  Simmisen,  5  t*-^-^] 
De  G.  &  Sm.  723  ;  AnwJd  v.  EnnU,  2  Ir.  Ch.  Rep.  601. 

It  may  here  be  mentioned  that  in  a  recent  case  where  trustees  were  made 
liable  for  having  improperly  allowed  perishable  property  to  remain  in  specie 
and  to  be  enjoyed  by  the  tenant  for  life,  they  were  allowed,  by  means  of  an 
inquiry  in  the  same  suit,  to  recover  back  against  the  estate  of  the  tenant  for 
life  the  amount  overpaid  to  him  :  Hood  v.  Clapham,  19  Beav.  90. 


The  general  principle  followed  in 
Howe  v.  The  Earl  of  Dartmouth, 
that  in  adjusting  the  respective  inter- 
ests of  legatees  for  life  and  remain- 
dermen^  in  bequests  of  personalty,  it 
will  be  presumed  that  the  testator  in- 
tended, that  the  bequest  should  be 
continuous,  and  that  it  should  not  be 
consumed  in  the  hands  of  the  first 
taker,  but  should  survive  for  the  be- 
nefit of  those  in  remainder,  has  been 
adopted  by  the  courts  of  this  country, 
although  the  instances  requiring  its 
application,  are  much  fewer  with  us 
than  in  England.  It  is  well  settled, 
that  where  there  is  a  pecuniary  or  re- 
siduary bequest  for  life,  with  a  limita- 
tion over,  the  executor  will  be  bound 
to  protect  the  interests  of  those  in  re- 
mainder, by  requiring  security  from 
the  legatee  for  life,  or  by  converting 
the  fund  into  cash,  and  investing  it 
in  trust  for  the  benefit  of  all  who  are 
entitled  under  the  will ;  Covenhoven 
v.  Shider,  2  Paige,  132  ;  Williamson 
V,  Williamson,  6  Id.  298 ;  Kinnard 
V.  Kinnard,  5  Watts,  108 ;  Eeichel- 
lurger  v.   Barnetz,  17  S.  &  R.  293; 


Woods  V.    Sidlivan,   1   Swan,    ,507; 

Wootten  V.  Burch,  2  Maryland  Ch. 
190.  This  general  rule,  which  is 
simply  designed  to  give  efi'ect  to  the 
intention  of  the  testator,  will,  how- 
ever, yield  wholly  or  in  part,  when- 
ever he  manifests  an  opposite  or  differ- 
ent intention,  or  when  it  cannot  be 
applied  without  defeating  the  pur- 
poses of  the  bequest.  "When  money, 
or  property,  meant  to  be  converted 
into  money,  is  bequeathed,  there  is  no 
hardship  in  requiring  seaurity  before 
payment  or  delivery  to  the  legatee, 
because  if  he  is  unable  to  give  securi- 
ty, the  object  of  the  testator  may  be 
equally  well  attained  by  investing  the 
fund,  and  allowing  him  to  receive  the 
interest.  But  where  books,  furniture, 
or  other  specific  chattels  are  specifi- 
cally bequeathed  by  will,  the  presump- 
tion is,  that  the  testator  intended, 
that  they  should  be  used  by  the  lega- 
tee in  the  form  in  which  they  were 
given,  and  as  they  must  be  delivered 
to  him  in  specie,  in  order  to  effectu- 
ate this  intention,  security  will  not  be 
required,  because  requiring  it  would 


532 


BEQUESTS     FOR     LIFE.  —  CONVERSION. 


defeat  the  bequest,  in  case  the  lega- 
tee were  unable  to  give  it.  Hence, 
under  these  circumstances,  the  duty 
of  the  executors  is  limited  to  taking 
an  inventory  for  the  benefit  of  those 
in  remainder,  and  intrusting  the  pro- 
perty to  the  legatee  for  life,  without 
security,  and  subject  to  such  deterio- 
ration or  consumption,  as  may  result 
from  any  appropriate  use  which  he 
may  make  of  it;  Woods  v.  Sunivaii  ; 
WoottcnY.  Burch ;  lianey  v.  Heath, 
2  Heath  &  Patton,  206  ;  Henderson  v. 
V.  Yaidx,  10  Yerger,  30;  Spear  v. 
Tinham,  2  Barbour,  Ch.  211 ;  Smith 
V.  Barham,  2  Dev.  Eq.  420;  Hol- 
man's  Appeal,  12  Harris,  174;  Ger- 
mnn  v.  German,  3  Casey,  116.  But 
the  presumption  of  equity  is  so  strong- 
ly against  a  course,  which  necessarily 
interferes  with  the  equalization  of  the 
bequest  between  the  legatee  for  life 
and  those  in  remainder,  by  compel- 
ling the  latter  to  take  the  property, 
subject  to  the  deterioration,  which  it 
has  undergone  by  the  lapse  of  time 
and  by  use,  that  where  specific  chat- 
tels, instead  of  being  given  specifical- 
ly, form  a  part  of  a  general  residuary 
bequest  for  4ife,  with  limitations  over, 
the  object  of  the  testator  will  be  pre- 
sumed to  have  been  to  give  the  first 
taker,  the  mere  interest  on  the  fund, 
and  the  executor  will  be  bound  to  con- 
vert the  whole  into  cash,  and  either 
invest  it  for  the  purposes  of  the  will, 
or  pay  it  over  on  receiving  security, 
as  in  the  case  of  pecuniary  legacies; 
Smith  V.  Barham,  2  I)ev.  Equity, 
420,  428;  Covenhovcn  v.  Shuler,  2 
Paige,  122.  "Where  there  is  a  be- 
quest for  life,  or  other  limited  period," 
said  the  court,  in  Covenhoven  v.  Shider, 
"  with  a  limitation  over,  of  specific 
articles,   such   as   books,  plate,   kc, 


which  are  not  necessarily  consumed 
in  the  using,  the  first  taker  was  for- 
merly required  to  give  security,  that 
the  articles  should  be  forthcoming  on 
the  happening  of  the  contemplated 
event.  And  the  remainderman  must 
take  them  in  the  situation,  in  which 
they  will  be  left  by  the  ordinary  pru- 
dent use  thereof  by  the  first  taker; 
Hale  V.  Burrodale,  1  Eq.  Ca.  Abr. 
461  ;  Bracken  v.  Bently,  1  Eep.  in 
Ch.  110.  The  modern  practice  in 
such  cases  is  only  to  require  an  inven- 
tory of  the  articles,  specifying  that 
they  belong  to  the  first  taker  for  the 
particular  period  only,  and  afterwards 
to  the  person  in  remainder;  and  se- 
curity is  not  required,  unless  there  is 
danger  that  the  articles  may  be  wasted 
or  otherwise  lost  to  the  remainderman ; 
Foley  N.  Burnell,  1  Bro.  Ch.  Ca.  279  ; 
Slanney  v.  Style,  3  Peere  Wms.  336. 
Whether  a  gift  for  life  or  specific  arti- 
cles, as  of  hay,  grain,  kc,  which  must 
necessarily  be  consumed  in  the  using, 
is  to  be  considered  an  absolute  gift  of 
the  property,  or  whether  they  must 
be  sold,  and  the  interest  or  income 
only  of  the  money  applied  to  the  use 
of  the  tenant  for  life,  appears  to  be  a 
question  still  unsettled  in  England ; 
3  Ves.  314;  3  Mer.  194.  But  none 
of  these  principles,  in  relation  to  spe- 
cific bequests  of  particular  articles, 
whether  capable  of  a  separate  use  for 
life  or  otherwise,  are  applicable  to  this 
case.  Where  there  is  a  general  be- 
quest of  a  residue  for  life,  with  a  re- 
mainder over,  although  it  includes 
articles  of  both  descriptions  as  well 
as  other  property,  the  whole  must  be 
sold,  and  converted  into  money  by  the 
executor,  and  the  proceeds  must  be 
invested  in  permanent  securities,  and 
the  interest  or  income  only  is  to  be 


HOWE     V.     EARL     OF     DARTMOUTH. 


533 


paid  to  the  legatee  for  life.  This  dis- 
tinctioQ  is  recognized  by  the  master 
of  the  rolls,  ia  Randall  v.  Russell,  3 
Mer.  R.  193.  He  says,  if  such  arti- 
cles are  included  in  a  residuary  be- 
quest for  life,  then  they  are  to  be  sold, 
and  the  interest  enjoyed  by  the  ten- 
ant for  life.  This  is  also  recognized 
by  Roper  and  Preston,  as  a  settled 
principle  of  law,  in  England ;  Prcst. 
on  Leg.  96;  Roper  on  Leg.  209;  see 
also  Hovie  v.  Earl  of  Dartmouth,  7 
Vesey,  137,  and  cases  in  notes."  The 
law  was  held  the  same  way  in  Hender- 
son V.  Vaidx,  10  Yerger,  30 ;  and, 
again,  in  Cairns  v.  Chaubert,  9  Paige, 
160,  where  it  was  said  that  a  specific 
bequest  of  an  estate  for  life,  or  other 
limited  interest  in  a  term  for  years, 
entitles  the  legatee  to  the  use  and  en- 
joyment of  the  property  in  the  state 
in  which  it  is,  when  the  bequest  vests 
in  possession,  without  regard  to  the 
deterioration  which  it  may  undergo 
in  his  hands,  or  the  possible  expira- 
tion of  the  term  before  it  reaches  the 
remainderman ;  but  that  when  suc- 
cessive estates  or  interests  in  a  term 
are  conferred  in,  or  by  a  general  re- 
siduary bequest,  the  whole  must  be 
sold,  and  the  resulting  fund  invested 
in  such  a  way  as  to  give  a  permanent 
income  to  all  the  parties  in  interest. 
And  the  rule  thus  laid  down  was  ap- 
plied by  a  direction,  that  a  right  or 
franchise  in  a  bridge  and  certain  lease- 
hold property  adjoining,  which  had 
been  conferred  by  a  residuary  bequest 
on  several  persons  in  succession, 
should  be  converted  into  money,  and 
the  proceeds  invested  for  the  benefit 
of  all  the  legatees.  In  Evans  v.  Ingle- 
hart,  6  Gill  &  Johnson,  171,  the 
course  pursued  in  Covenhoven  v. 
Shuler,  was  questioned  as  being  un- 


necessarily severe,  and  especially  ill 
suited  to  the  humanity  which  should 
mark  the  course  of  the  law,  where 
slaves  are  in  question ;  and  the  rule 
which  requires  the  conversion  of  a 
residuary  bequest  comprising  specific 
chattels  into  money,  held  only  appli- 
cable to  things  whose  use  lies  in  their 
consumption,  and  which  cannot  be  used 
without  consuming  them,  and  to  have 
no  application  to  chattels  which  may  be 
enjoyed  without  being  destroyed,  al- 
though not,  perhaps,  without  deterio- 
ration. And  on  the  other  hand,  in 
Hai-rison  v.  Foster,  9  Alabama,  955, 
the  presumption  was  said  to  be  in 
favor  of  a  sale,  and  the  investment  of 
the  proceeds,  in  every  case  of  a  be- 
quest for  life,  with  remainder  over, 
whether  general  or  specific,  although 
liable  to  be  rebutted  by  anything 
which  manifests  an  opposite  intention. 
The  rules  thus  laid  down  will,  how- 
ever, be  varied  to  suit  the  purpose  of 
the  testator  as  gathered  from  his  ex- 
pressions in  making  the  bequest,  and 
when  he  shows  an  intention,  that  the 
legatee  for  life  shall  have  the  actual 
use  and  enjoyment  of  the  things  be- 
queathed, and  that  the  remainderman 
shall  take  them,  subject  to  such  dete- 
rioration as  they  may  receive  while  in 
the  hands  of  the  first  taker,  there  can 
be  no  ground  for  refusing  him  actual 
possession,  or  for  resorting  to  a  sale 
and  investment  of  the  proceeds,  whe- 
ther the  bequest  be  general  or  specific ; 
Dunbar  v.  Woodcock,  10  Leigh,  628; 
Evans  V.  Inglehart,  6  Grill  &  Johns. 
171;  Holman's  Appeal,  12  Harris, 
178;  German  v.  German,  3  Casey, 
116  ;  Harrison  v.  Foster,  9  Ala.  955 ; 
^Yoods  V.  Sidlivan,  1  Swan,  507. 
Thus,  in  Kinnard  v.  Klnnard,  5 
Watts,   108,  where   the  testator  be- 


534 


BEQUESTS  FOR  LIFE.  —  CONVERSION. 


queathed  all  his  estate  to  his  wife  for 
her  life,  and  directed  his  executors  to 
sell  the  property,  remaining  at  her 
death,  and  divide  the  proceeds  among 
his  nephews,  it  was  held  by  the  court, 
that  the  limitation  of  the  sale  to  what 
should  be  left  at  the  decease  of  the 
wife,  made  the  bequest  to  her  specific, 
so  far  as  the  testator  was  possessed  of 
specific  chattels,  and  that  she  was 
conserjuently  entitled  to  receive  them 
without  giving  security ;  but  that  as 
to  the  residue  of  the  personalty,  the 
bequest  was  general,  and  it  was  the 
duty  of  the  executors  to  invest  it  for 
the  protection  of  those  in  remainder. 
The  intention  of  the  testator,  that  the 
first  taker  should  enjoy  the  bequest 
even  to  the  exclusion  of  those  in  re- 
mainder, may  also  be  inferred  from 
the  nature  of  the  property  bequeathed, 
as  where  it  consists  of  hay,  corn,  fire- 
wood or  other  articles  of  a  similar  na- 
ture, of  which  the  consumption  is  in- 
separable from  the  use.  Where  this 
is  the  case,  the  right  of  those  in  re- 
mainder will  be  limited  to  such  por- 
tions of  the  bequest,  as  may  remain 
unconsumed  at  the  death  of  the  legatee 
for  life,  or  will  even  fail  altogether  as 
repugnant  to  the  primary  purpose  of 
the  gift;  Henderson  v.  Vaulx;  The 
State  V.  Warrington,  4  Harrington, 
55 ;  Randall  v.  Russell,  3  IMcrivale, 
195  ;  ^Yoo(t€n  V.  Btirch,  2  Maryland 
Ch.  190;  Jlolman' s  Apjyeal :  German 
V.  German  ;  unless  from  the  quantity 
bequeathed,  the  nature  of  the  testa- 
tor's business,  or  other  similar  circum- 
stances, the  court  can  infer  an  inten- 
tion to  give  the  property  as  merchan- 
dize, and  not  for  actual  use,  when 
the  interest  of  those  in  remainder 
will  no  doubt  be  protected  by  a  sale. 


and  the  investment  of  the  proceeds,  or 
a  requisition  for  security. 

In  Floicers  v.  FranJdin,  5  Watts, 
265,  the  interests  of  the  remainder- 
man and  of  the  legatee  for  life,  were  re- 
conciled by  a  process  which  seems  too 
full  of  practical  difiiculty  to  be  gen- 
erally followed.  The  testator  made  a 
specific  bequest  of  his  farming  imple- 
ments and  stock  to  his  widow  for  life, 
with  a  limitation  over  to  his  children, 
and  directed  that  they  should  be  used 
on  the  farm  for  the  benefit  of  his 
family.  Under  these  circumstances  it 
was  held,  that  his  intention  was,  that 
the  legatee  for  life  should  have  the 
actual  possession  and  use  of  the  pro- 
perty bequeathed,  but  also  that  it 
should  be  transmitted  without  dimi- 
nution or  deterioration  to  those  in  re- 
mainder, and  that  the  children  were 
entitled  at  her  death  to  the  stock  and 
implements,  which  had  been  pur- 
chased from  time  to  time  in  the  place 
of  those  which  were  originally  be- 
queathed, and  subsequently  lost  or 
destroyed  by  death  or  accident,  in 
opposition  even  to  the  claims  of  the 
creditors  of  the  widow.  This  de- 
cision no  doubt  effectuated  the  pur- 
pose of  the  testator,  but  as  it  would 
seem,  at  some  sacrifice  of  legal  policy, 
and  even  principle.  The  discrimina- 
tion, under  such  circumstances,  be- 
tween that  portion  of  the  property, 
which  legally  and  equitably  belongs 
to  the  legatee,  and  that  which  is  fairly 
attributable  to  the  bequest  for  life, 
must  necessarily  be  attended  with 
much  difiiculty  and  uncertainty.  Nor 
can  such  an  investigation  be  permitted 
without  giving  an  opening  to  fraud. 
The  true  rule  seems  to  be,  that  when 
specific  chattels   are   comprised  in  a 


no  WE     V.      EARL     OF     DARTMOUTH. 


635 


general  bequest  for  life  with  limita- 
tions over,  they  must  be  sold,  and  the 
proceeds  invested  or  security  required, 
but  that  when  given  specifically,  they 
are  to  be  delivered  to  the  legatee  for 
life,  without  imposing  on  him  any  ob- 
ligation to  replace  them  in  case  of 
their  loss  or  deterioration  by  natural 
causes,  and  without  negligence  on  his 
part;  Covenlioven  v.  Shuler,  2  Paige, 
122;  Dunbar  v.  Woodcock,  10  Leigh, 
628.  And  the  remedy  of  the  remain- 
derman must  be  sought  in  a  bill 
against  the  personal  representatives  of 
the  tenant  for  life  after  his  death,  for 
an  account,  and  the  payment  or  delivery 
of  so  much  of  the  money  or  property 
as  still  remains  in  being,  and  an  in- 
demnity for  any  portion  of  it  which 
may  have  been  lost  or  destroyed  wan- 
tonly or  negligently ;  French  v.  Hatch, 
8  Foster,  331 ;  Westcott  v.  Cady,  5 
Johnson,  Ch.  334. 

In  WiUlamson  v.  Williamson,  6 
Paige,  298,  the  question  was  whether, 
under  a  bequest  of  a  residuary  fund 
to  a  widow  for  life,  with  remainder 
over,  the  interest  accruing  on  that 
portion  of  the  personal  estate  which 
had  been  bequeathed  in  pecuniary 
or  specific  legacies,  for  the  year 
succeeding  the  death  of  the  tes- 
tator, (during  which  they  were  not 
payable,)  should  go  directly  to  the 
legatee  for  life,  or  should  be  added  to 
the  bulk  of  the  estate,  and  treated  as 
principal  for  her  benefit  and  that  of 
the  parties  in  remainder.  The  latter 
course  was  taken  by  the  chancellor  on 
the  general  principle,  that  in  cases  of 
successive  bequests,  the  value  of  the 
property  bequeathed  is  to  be  estimated 
as  it  would  stand  at  the  death  of  the 
testator,  if  converted  into  a  principal 
fund  bearing  interest  at  five  per  cent., 


which  was  adopted  as  a  nearer  ap- 
proach to  actual  rates,  than  the  three 
per  cent,  stock,  which  is  taken  as  the 
measure  of  value  in  England.  And 
it  was,  consequently,  decided,  that  al- 
though the  legatee  for  life  was  entitled 
to  interest  from  the  death  of  the  tes- 
tator, yet  it  was  only  on  the  residuary 
fund  as  thus  estimated,  and  not  the 
whole  bulk  of  his  property.  '<  It  was 
not  the  intention  of  the  testator,"  said 
the  chancellor,  "  to  give  his  wife  the 
interest  or  income  of  his  whole  per- 
sonal estate,  until  the  debts  and  lega- 
cies should  be  paid,  or  for  the  term  of 
one  year,  and  then  the  interest  upon 
the  residuary  estate  after  that  time. 
But  it  was  his  intention  to  give  her 
the  use  or  income  of  the  same  residu- 
ary fund,  the  capital  of  which  was  to 
be  distributed  to  his  three  sons  upon 
her  death  or  re-marriage. 

"  The  case  of  Covenhoven  v.  Shuler, 
2  Paige,  Rep.  132,  and  the  authori- 
ties there  referred  to,  settle  the  prin- 
ciple that  where  there  is  a  general  be- 
quest of  a  residue  of  the  testator's  per- 
sonal estate  for  life,  with  a  remainder 
over,  after  the  death  of  the  first  taker, 
the  whole  residuary  fund  is  to  be  in- 
vested for  the  benefit  of  the  remain- 
derman ;  and  the  tenant  for  life  is  only 
entitled  to  the  interest  or  income  of 
that  fund.  And  to  ascertain  the 
amount  of  such  residuary  fund,  so  as 
to  apportion  the  capital  and  the  in- 
come properly  between  the  remainder- 
man and  the  tenant  for  life,  the  exe- 
cutor, upon  settling  the  estate  at  the 
end  of  the  year,  must  estimate  the 
whole  estate  at  what  is  then  ascer- 
tained to  have  been  its  cash  value,  at 
the  testator's  death,  after  paying  all 
debts,  legacies,  and  expenses  of  ad- 
ministration, and  other  proper  charges 


536 


REPETITION     OF     LEGACIES. 


and  commissions.  But,  in  making 
such  deduction  for  legacies  payable  at 
a  future  day,  and  which  do  not  draw 
interest,  the  whole  amount  of  the  lega- 
cies is  not  to  be  deducted,  but  only 
such  a  sum  as,  if  properly  invested, 
would  at  the  time  when  the  legacies 
become  payable,  have  produced  the 
requisite  sum,  exclusive  of  all  expenses 
and  risk  of  loss.  The  rule  in  Eng- 
land, as  between  the  legatee  for  life 
and  the  remainderman,  is  to  invest,  or 
consider  the  fund  as  invested,  in  the 
three  per  cents.,  being  two  per  cent. 


less  than  the  legal  rate  of  interest  in 
that  country;  Hoxoe  v.  Earl  of  Dart- 
mouth, 7  Ves.  137.  Upon  the  same 
principle,  according  to  the  legal  rate 
of  interest  here,  the  income  of  a  five 
per  cent,  stock,  which  stocks  can  gen- 
erally be  purchased  at  about  the  par 
value,  may  be  considered  as  a  reason- 
able discount  upon  a  legacy  payable 
at  the  end  of  the  year,  for  the  pur- 
pose of  ascertaining  the  value  of  the 
residuary  estate  at  the  death  of  the 
testator."  See  1  American  Leading 
Cases,  517,  4th  ed. 


[*285] 


REPETITION   or   LEGACIES. 

*HOOLEY  V.  HATTON. 

MAY  16,  1772  ;  FEB.  6,  1773. 
REPORTED   1    BRO.    C.    C.    390,  n.^ 


Repetition  of  Legacies.] — A  larger  legacy  given  hy  a  codicil  held  not  to  he 
a  repetition  of  a  smaller  legacy  given  hy  a  will,  it  hcing,  in  the  absence  of 
internal  evidence  to  the  contrary,  accumulative. 

The  same  sjyecifc  thing  or  corpus  cannot  he  given  ttvice. 

With  regard  to  legacies  of  quantity,  if  a  legacy  of  the  same  amoimt  is  given 
twice  for  the  same  cause,  and  in  the  same  act,  and  totidem  verhis,  or  only 
toith  small  difference,  it  will  not  he  double  ;  hut  where  in  different  writings 
there  is  a  bequest  of  equal,  greater,  or  less  sums,  it  is  an  augmentation. 

The  Lady  Isabella  Finch,  by  her  will,^  bearing  date  the  30th  of  August, 


1  S.  C,  2  Dick.  4G1  ;  Lofft,  122,  nom.  Ilatton  v.  Ilooley. 

2  In  this  report  of  Hooley  v.  Ilatton,  tlie  codicils  of  Lady  Isabella  Finch  are  not  set 
forth  in  the  order  in  which  they  ought  to  stand.  By  an  extract  from  the  registry  of  the 
Prerogative  Court  of  Canterbury,  it  appears  that  the  legacy  given  to  her  maid  was  in 
these  words  : — "  I  give  to  my  woman  Lydia  Hooley  £500,  to  be  paid  to  her  within  three 
months  after  my  decease." 

The  first  codicil  was  in  these  wftrds  : — "  October  28th,  1769. — This  codicil  I  add  to 
my  will.     I  give  £1000  to  Lydia  Ilooley. — Cecilia  Isabella  Finch." 

The  second  codicil  was  as  fullows  : — "I,  Lady  Cecilia  Isabella  Finch,  do  desire  this 
paper  writing  may  be  accepted  and  taken  as  a  codicil  to  my  will.  I  give  to  my  servant 
Lydia  Ilooley,  over  and  besides  what  I  have  left  her  by  my  will,  an  annuity  of  £12  per 


HOOLEY     V.     HATTON.  537 

1768,  gave  to  Lydia  Hoolcy,  her  woman,  the  plaintiff,  a  legacy  of  £500.     The 
will  was  executed  in  the  presence  of  two  witnesses. 

By  a  codicil,  she  gave  Lydia  Hooley  £60,  to  be  paid  to  her. 

She  afterwards  made  a  second  codicil,  dated  the  28th  of  October,  1769,  in 
these  words  : — "  I  add  this  codicil  to  my  will  :  I  give  Lydia  Hooley  £1000." 
This  was  in  her  own  handwriting,  but  not  executed  before  witnesses. 

The  plaintiff  filed  her  bill  for  the  said  legacies  and  annuity.     The  question 
was,  whether  the  last  legacy  alone  ^passed,  or  the  legatee  should  have 
both  the  £1000  and  the  £500.  l*2SQ] 

The  Master  of  the  Rolls,  (Sir  Thomas  Sewell,)  had  decreed  both  to  the 
plaintiff,  and  the  defendant  appealed  to  the  Chancellor,  (Lord  Apsley,)  who 
was  assisted  by  the  Lord  Chief  Baron  Smythe  and  Mr.  Justice  Aston.' 

This  case,  after  having  been  argued  very  much  at  large,  (Lofft,  122,)  stood 
over  till  Hilary  Term,  when  the  Court  gave  judgment. 

Mr.  Justice  Aston. — There  is  in  this  case  no  internal  evidence ;  there- 
fore, we  must  refer  to  the  general  rule  of  law. 

The  counsel  applied  the  rules  laid  down  in  the  case  of  The  Dulce  of  St. 
Albans  v.  Beauclerk.'^  It  is  evident  those  rules  are  not  general,  but  go  on 
the  particular  circumstances  of  that  case.  It  was  contended  there,  that  the 
fourth  codicil  was  to  stand  in  the  room  of  the  first. 

There  are  four  cases  of  double  legacies : — 

First,  when  the  same  specific  thing  is  given  twice,  Cujacius  takes  a  distinc- 
tion between  the  same  res  and  the  same  quantity.  In  the  first  case,  it  can 
take  place  but  once,  at  eadem  quantitas  ssepius  praestari  potest :  Dig.  1.  22,  tit. 
3,  1.  12:  Cuj.op.  t.  4,  381,  382. 

Secondly,  where  the  like  quantity  is  given  twice.  Lord  Hardwicke,  in  Duke 
of  St.  Albans  v.  Beauclerk,^  alluding  to  the  particular  circumstances  of  the 
case,  laid  down,  one  only  should  be  taken,  unless  an  intention  appeared  to  the 
contrary :  Dig.  34,  tit.  4,  1.  9 ;  but  nothing  can  be  collected  from  hence,  as 
the  title  of  the  Digest  must  be  attended  to,  which  expressly  says  animo  adi- 
mendi:  Godolphin's  Orphan's  Legacy,  pt.  3,  c.  26,  s.  46;  Swinb.  626,  530, 
edit.  1728,  where  £100  and  £100  [are  given  by  different  instruments,]  the 
legatee  [is]  entitled  to  both. 

The  doctrine  from  the  repetition  of  two  equal  sums  in  one  will  being  bad, 
and  in  a  will  and  codicil  being  good,  attributing  the  former  to  forgetful n ess, 
is  strange.  The  case  of  the  Slaves,  Dig.  34,  tit.  1, 1.  18,  and  that  in  2  D'Agues- 
seau,  Pleading  the  First,  page  21,  are  upon  *entirely  different  princi-  ^^.^q~,-, 
pies.     It  would  be  strange  to  suppose  Lord  Hardwicke  applied  this  as  L  "'"  J 

annum  for  her  life,  to  be  paid  quarterly,  on  the  usual  days  of  payment ;  the  first  of  the 
said  payments  to  commence  on  the  first  of  the  said  days  which  shall  happen  after  my 
decease.  Lady  Isabella  Finch  further  orders  the  sum  of  £60  to  be  paid  to  Rebecca 
Hooley. — Cecilia  Isabella  Finch."— Note  by  Mr.  Miller,  2  Russ.  2G9. 

1  Sir  S.  S.  Smythe,  C.  B.,  and  Sir  Richard  Aston,  J.,  had,  previous  to  the  Great  Seal 
being  delivered  to  Lord  Apsley  as  Chancellor,  been  with  him  Lords  Commissioners. 

2  2  Atk.  G3(J.  s  2  Atk.  638. 


538  REPETITION     OF     LEGACIES. 

a  general  rule,  which  would  be  inconsistent  with  his  recognizing,  (as  he  did 
expressly)  the  authority  of  Swinb.  526,  530 ;  but  said,  that  the  case  before 
him  was  different,  from  the  internal  evidence. 

In  regard  to  the  cases  in  the  Roman  law, — first,  where  equal  sums  are  given 
in  two  distinct  writings,  both  shall  pass  by  the  lloman  law,  and  the  decisions 
of  this  Court  are  agreeable  thereto  :  Dig.  22,  tit.  3,  1.  12 ;  and  Gothofred's 
note  in  Diversis  Scripturis,  Dig.  30,  tit.  1,  1.  34 ;  in  Eadem  Scriptura,  Cuja- 
cius,  4,  311,  distinguishes  between  a  corpus  and  quantity :  Yoet  on  the  31  & 
32  Digest;  Godolphin,  pt.  o,  c.  26,  s.  46;  Swinburne,  526;  llicard,  Traite 
des  Donations,  vol.  1,  p.  419,  420,  421 ;  Wallop  v.  Hewett,  2  Ch.  Rep.  70 ; 
Neicporty.  Kynaston,  Rep.  t.  Finch,  294;  Menochius  dc  Prassumptionibus, 
1.  4;  2  Ch.  Rep.  58. 

Thirdly,  as  to  a  less  sum  in  the  latter  deed,  as  £100  by  will,  and  £50  by 
the  codicil,  the  legatee  shall  take  both  :  Godolphin,  pt.  3,  c.  25,  s.  19 ;  Ridout 
V.  Poyne^  Pitt  v.  Pidgeon.'^ 

Fourthly,  as  to  a  larger  sum  after  a  less,  Ricard,  vol.  1,  p.  421,  (Traite 
des  Donations,)  folio  edition,  says,  where  they  are  in  the  same  instrument,  the 
two  sums  are  not  blended,  but  the  legatee  has  two  legacies;  and  the  heir 
must  show  that  the  one  was  meant  to  be  blended  with  the  other,  the  presump- 
tion being  in  favor  of  what  is  written  :  ^Yind]lam  v.  Windham,^  Pitt  v.  Pid- 
geo7i,*  Masters  v.  Masters.^ 

The  law  seems  to  be,  and  the  authorities  only  go  to  prove  the  legacy  not  to 
be  double  where  it  is  given  for  the  same  caiise  in  the  same  act,  and  totidem 
verbis,  or  only  with  small  difference ;  but  where  in  different  writings  there  is 
a  bequest  of  equal,  greater,  or  less  sums,  it  is  an  augmentation,  and  therefore 
Lydia  Hooley  is  entitled  to  both  the  sums  of  £500  and  £1000. 

Lord  Chief  Baron  Smythe. — I  am  clearly  of  the  same  opinion,  and 
therefore  shall  be  very  short. 

*The  intention  is  the  clearest  rule ;  but  it  is  admitted  on  all  hands, 

[*'''881 
^  here  is  no  internal  evidence ;  we  therefore  must  refer  to  the  rule  of  law. 

The  rule  of  law  is  different  with  respect  to  a  corpus  and  to  quantities. 

On  the  other  side  was  quoted  The  Mayor  of  London  v.  Russell,  Rep.  t. 
Finch,  290,  where  the  words  were  satisfied  by  some  goods.  In  The  Duke  of 
St.  Albans  V,  Beauclerh,  the  last  codicil  was  evidently  the  same  as  the  first. 

Lord  Chancellor  Apsley." — It  would  be  sufficient  for  me  to  say,  I  am 
of  the  same  opinion,  if  Mr.  Justice  Aston  had  not  referred  to  me  with  respect 
to  some  of  the  cases. 

By  the  civil  law,  where  two  pecuniary  legacies  were  given  by  the  same  will, 
the  legatee  must  prove  it  was  to  be  doubled ;  but  where  the  two  bequests  are 
in  different  writings,  there  the  presumption  shall  be  in  favor  of  the  legatee. 

No  argument  can  be  drawn,  in  the  present  case,  from  internal  evidence;  we 
must  therefore  refer  to  the  rule  of  the  civil  law. 

1  1  Ves.  10,  1,  2  1  Ch.  Ca.  301.  «  Rep.  t.  Finch.  267. 

*  1  Ch.  Ca.  301.  ^  1  P.  Wms.  421,  423  ;  and  sec  Curry  v.  Pile,  2  Bro.  C.  C.  225, 

*  Lord  Apsley  was  afterwards  Earl  of  Bathurst. 


nOOLEY     V.     HATTON.  539 

In  the  case  of  The  Duke  of  St.  Albans  v.  Beauclerh,  Lord  Hardwicke  laid 
down  the  rule  as  applicable  to  that  case,  and  not  as  a  general  rule.  "  This 
question,"  said  Lord  Hardwicke,  "  divides  itself  into  different  parts.  I  am  of 
opinion,  that,  upon  the  reason  of  the  thing,  and  according  to  the  best  writers, 
these  legacies  being  in  different  writings  will  make  no  diiference  in  this  case." 
Neither  was  it  put  upon  being  one  instrument.  Certainly,  they  are  different : 
"  And  as  the  will  and  codicil  make  but  one  will."  Lord  Hardwicke  quoted 
Gothofred,  "  iranio  haares  priorem  probare  inanem  esse  non  tenetur,"  but  did 
not  speak  of  proving  both  will  and  codicil,  as  he  is  represented  to  do  in  the 
report.  Then  Lord  Hardwicke  considered  the  internal  evidence,  and  added, 
"  By  the  power  reserved  in  her  will,  she  has  shown  her  intent  to  make  them 
one  instrument,"^  which  words  are  omitted  in  the  report. 

Lord  Hardwicke  probably  thought  that  Sir  Joseph  Jekyll,  in  Masters  v. 
Planters,  gave  two  reasons,  where  he  *seenis  to  give  only  one.  I  will  p.r,QQ-i 
hazard  a  conjecture  upon  the  pointing  of  the  report,  1  P.  Wms.  424  ;  ^  ~  J 
the  semicolon  in  the  passage  "should  not  be  taken  as  a  satisfaction  unless  so 
expressed;  that  it  was,"  &c.,  was  wrong  placed,  and  should  be  after  the  words 
"that  it  was;"  by  which  means  the  passage  would  stand,  "should  not  be 
taken  as  a  satisfaction,  unless  so  expressed  that  it  was;  as  if  both  legacies  had 
been  given  by  the  same  will,"  &c.  This  case,  therefore,  is  an  authority  in 
point,  because  there  are  two  distinct  writings. 

So  in  Wallop  v.  Ileicett,  2  Ch.  Rep.  70.  The  Register's  book  shows  that 
the  case  went  upon  the  general  doctrine  of  the  civil  law,  and  not  on  any  inter- 
nal evidence. 

His  Lordship  further  cited  Windham  v.  Windliam,"^  Mayor  of  London  v. 
Russell,^  Newport  v.  Kinaston,^  Pitt  v.  Pidgeon,^  3  Huber  Praelectiones  Leg. 
Civ.  122,  and  Stirling'' s  case,  in  Scotland,  2  Fountainhall,  231 ;  and  concluded 
with  saying,  I  have  therefore  the  satisfaction  to  think  we  confirm  Lord  Hard- 
wicke's  opinion. 

The  decree  of  the  Master  of  the  Rolls  affirmed. 


Hooley  V.  Hatton,  has  usually  been  referred  to  as  containing  a  sound  expo- 
sition of  the  law  as  to  the  repetition  of  legacies,  when  the  point  to  be  deter- 
mined is,  whether  a  second  legacy  is  to  be  taken  as  substitutional  or  accumu- 
lative. See  Foy  v.  Foy,  1  Cox,  164  ;  Ridges  v.  Morrison,  1  Bro.  C.  C.  390  ; 
Cootc  V.  Boyd,  2  Bro.  C.  C.  529  ;  Barclay  v.  Wainwright,  8  Ves.  465;  Suisse 
V.  Lowther,  2  Hare,  432.  And  in  the  case  of  Heming  v.  Clutterbuck,  1 
Bligh,  N.  S.  492,  in  the  House  of  Lords,  Lord  Eldon  said,  that  the  general 
principles  upon  which  cases  of  this  kind  are  to  be  decided,  are  so  accurately 
laid  down  in  the  case  of  Hooley  v.  Ilatton,  that  it  was  unnecessary  for  him  to 

1  The  Lord  Chancellor  read  the  words  marked  with  inverted  commas,  from  Lord 
Hardwicke's  original  note. 

2  Rej).  t.  Finch,  267.  »  Rpp.  t.  Finch,  290.  ■*  Rep.  t.  Finch,  294. 
6  1  Ch.  Ca.  301. 


540  REPETITION     OF     LEGACIES. 

trouble  their  Lordships  further  than  by  stating  it.  The  rules  of  the  Court  of 
Chancery,  and  the  rules  of  the  civil  law  upon  the  subject,  were  there  discussed 
by  the  late  Mr.  Justice  Aston,  and  afterwards  applied  by  the  Lord  Chancellor. 

Douhle  gift  of  the  same  specif  c  thing.'\ — With  regard  to  the  first  case  men- 
tioned by  Mr.  Justice  Aston,  it  is  clear,  that  where  the  same  specific  thing 
or  corpus  is  given,  either  in  the  same  instrument  *or  in  different  instru- 
L  -■  ments,  in  the  nature  of  the  thing,  it  can  but  be  a  repetition ;  where, 
for  instance,  there  are  two  gifts  of  a  ruby  ring,  and  there  is  no  pretence  that 
there  are  two  ruby  rings.  See  Dulic  of  St.  Albans  v.  BeaucJcrlc,  2  Atk.  638  ; 
Ridges  v.  Morrison,  1  Bro.  C.  C.  392  :   Suisse  v.  Lowther,  2  Hare,  432. 

Legacies  of  quantiti/  given  hi/  different  instruments.'^ — It  is  equally  clear,  as 
is  laid  down  by  Mr.  Justice  Aston,  that  where  a  testator,  by  different  testa- 
mentary instruments,  has  given  legacies  of  quantity  simpliciter  to  the  same 
person,  the  Court,  considering  that  he  who  has  given  more  than  once,  must 
prima  facie  be  intended  to  mean  more  than  one  gift,  awards  to  the  legatee  all 
the  legacies ;  and  it  is  immaterial  whether  any  subsequent  legacy  is  of  the 
same  amount ;  ( Wallop  v.  JJewett,  2  Ch.  Rep.  70 ;  Neuport  v.  Kynaston, 
Rep.  t.  Finch,  294;  Baillie  v.  Butter  field,  1  Cox,  392 ;  Forbes  v.  Lawrence, 
1  Coll.  495  ;  Radburn  v.  Jervis,  3  Beav.  4.50 ;  Lee  v.  Pain,  4  Hare,  201, 
216 ;  Roch  v.  Callen,  6  Hare,  531 ;  Russell  v.  Dickson,  4  H.  &  L.  304,)  or 
less,  {Pitt  V.  Pidgeon,  1  Ch.  Ca.  301 ;  Hurst  v.  Beach,  5  Madd.  358,)  or,  as 
in  the  principal  case,  is  larger  than  the  first,  {Suissey.  Lowther,  2  Hare,  424; 
Hertford  v.  Loicther,  7  Beav.  107 ;  L?/o7i  v.  Colville,  1  Coll.  449 ;  Brennan 
V.  Moran,  6  Ir.  Ch.  Rep.  126 ;)  a  fortiori  where  there  is  any  variation  as  to 
the  mode  or  times  of  payment :  as,  where  the  legacy  given  by  a  will,  and  that 
given  by  a  codicil,  are  payable  at  difi"ereut  times,  carry  interest  from  different 
dates,  or  are  given  over  to  different  persons ;  (See  Hodges  v.  Peacock,  3  Ves. 
735;  Machensie  v.  Mackensie,  2  Russ.  262;  BartlettY.  Gillard,  2  Russ.  149; 
Guy  V.  Sharp,  1  My.  &  K.  589 ;  Wray  v.  Field,  6  Madd.  300 ;  S.  C,  2  Russ. 
257;  Watson  v.  Reid,  5  Sim.  431;  Strong  v.  Ingram,  6  Sim.  197;  Roblcy  v. 
Robley,1  Beav.  95;  The  Attorney- General  y.  George,  8  Sim.  138;  Lee  v. 
Pain,  4  Hare,  201,  223,)  or  are  given  upon  or  for  different  trusts  and  pur- 
poses, (Sav:rcyy.  Rumney,  5  De  G.  &  Sm.  698.)  So,  where  a  legacy  in  one 
instrument  is  to  the  separate  use  of  a  married  woman,  and  in  another  a  legacy 
is  given  to  her  not  to  her  separate  use :  Spire  v.  Smith,  1  Beav.  419.  So 
where  the  gifts  are  not  ejusdera  generis,  see  3fasters  v.  Masters,  1  P.  Wms. 
421,  423;  in  which  case  an  annuity,  though  of  greater  value,  was  held  not  to 
be  a  substitution  for  a  legacy. 

It  will  be  observed,  that,  in  the  second  codicil  of  Lady  Isabella  Finch,  (as 
taken  from  Mr.  Miller's  note,)  a  legacy  was  expressed  to  be  given  to  Lydia 
Hooley,  "  over  and  besides"  what  the  testatrix  had  left  her  by  her  will ;  it 
does  not,  however,  appear  that  auy  conclusion  was  drawn  from  those  words, 
P^..„  .-,  *to  the  effect,  that,  as  the  testatrix,  when  she  wished  to  give  anything 

"  in  addition,  knew  how  to  express  herself,  that,  therefore,  when  she  did 
not  so  express  herself  on  conferring  a  gift,  it  ought  to  be  taken  as  substitu- 


HOOLEY     V.     HATTON.  541 

tional  and  not  accumulative.  Some  weight,  however,  seems  occasionally  to 
have  been  given  to  such  words :  Moggridge  v.  ThackweU,  1  Ves.  jun.  464 ; 
Barclay  v.  Wabvwrightj  3  Ves.  466  ;  Mackensie  v.  Machende,  2  Russ.  273. 
And  in  Allen  v.  Callow,  3  Ves.  289,  Lord  Alvanley,  referring  to  the  circum- 
stance that  one  legacy  was  expressly  given  in  addition  to  another,  said,  '*  That 
is  not  an  insignificant  circumstance,  but  it  is  not  decisive,  for  the  same  thing 
was  done  in  Hooley  v.  Hatton  ;  but  it  does  strengthen  the  argument  of  those 
who  contend  that  one  of  those  dispositions  was  substituted  for  the  other."  In 
Russdl  V.  Dickson,  2  D.  »&  War.  133,  with  reference  to  this  subject.  Lord 
Chancellor  Sugden  says,  "  I  assent  to  the  argument,  that  if  a  testator  expressly 
declares  one  gift  to  be  in  addition  to  another,  (and  for  this  purpose  the  Court 
is  entitled  to  look  at  other  parts  of  the  same  instrument,  or  at  gifts  in  other 
testamentary  instruments,)  and  in  another  instance  makes  a  gift  without  any 
such  declaration,  this  is  a  circumstance  to  show  that  the  latter  was  intended 
not  to  be  additional,  but  in  substitution.  But,  still,  too  much  weight  must 
not  be  attached  to  the  variation.  To  hold  that  it  is  conclusive,  would  be  going 
too  far.  It  is  a  circumstance,  no  doubt,  important  to  show,  that  where  the 
testator  meant  addition,  he  knew  how  to  express  his  meaning;  and  a  party  is 
entitled  to  rely  on  it  to  that  extent."  See  S:  C,  affirmed  Dom.  Proc.  4  H. 
L.  Cas.  293.  And  in  Lee  v.  Pain,  4  Hare,  201,  221,  Sir  J.  Wigram,  V.  C, 
after  examining  all  the  authorities,  and  observing  that  the  Lord  Chancellor 
Sugden  had  stated,  with  great  accuracy,  all  that  could  be  said  upon  the  sub- 
ject, adds  :  "Upon  these  authorities  it  is  that  I  found  the  observation,  that  it 
may  well  be  doubted  whether  the  words  in  question  can  safely  be  relied  upon, 
except  in  corroboration  of  an  argument  arising  from  other  circumstances, — 
whether  the  use  of  superfluous  words  in  one  part  of  a  will  is  alone  sufficient  to 
reduce  the  proper  efi"ect  of  words  in  another  part  of  the  same  instrument, — 
whether,  in  such  a  case,  the  rule  expressio  eorum  quce  tacite  insimt  nihil  ope- 
ratur,  ought  not  to  be  applied."  But,  in  Lee  v.  Pain,  the  argument  founded 
upon  the  words  "  in  addition"  was  fairly  met  by  the  observation,  that  in  other 
cases,  in  the  first  codicil,  some  of  the  legacies  given  thereby  were  expressed  to 
be  given  in  lieu  of  those  given  by  the  will ;  and  the  answer  to  the  question, 
why  the  testatrix  did  not,  in  the  case  of  a  particular  legatee,  as  in 
*other  cases,  say  that  her  legacy  was  in  addition  to  that  given  by  the  L  -  -^J 
will,  was  by  way  of  retort,  why  did  she  not  in  that,  as  in  the  case  of  other 
legacies  given  in  the  same  codicil,  say  that  substitution  was  intended,  if  such 
were  her  intention  ?     See  4  Hare,  221,  233. 

But  although  the  legacies  are  in  different  instruments,  if  they  are  not  given 
simpliciter,  but  the  motive  of  the  gift  is  expressed,  and  in  such  instruments 
the  saine  motive  is  expressed,  and  the  same  stnn  is  given,  the  Court  considers 
these  two  coincidences  as  raising  a  presumption  that  the  testator  did  not  by  a 
subsequent  instrument  mean  another  gift,  but  meant  only  a  repetition  of  the 
former  gift :   Hurst  v.  Beach,  5  Madd.  358 ;  Benyon  v.  Benyon,  17  Ves.  34. 

But  the  Court  raises  this  presumption  only  where  the  double  coincidence 
occurs  of  the  same  motive,  and  the  same  sum  in  both  instruments.     It  will 


542  REPETITION     OF     LEGACIES. 


Bot  raise  it,  if  in  either  instrument  there  be  no  motive,  or  a  different  or  addi- 
tional motive,  expressed,  although  the  sums  be  the  same.     Thus,  in  Each  v. 
Callen,  6  Hare,  531,  where  a  testatrix  bequeathed  an  annuity  to  her  "  servant" 
E.  H.,  and  by  a  codicil  three  years  afterwards,  bequeathed  an  annuity  of  the 
same  amount  to  her  '<  servant"  E.  H.,  Vice-Chancellor  Wigram  held  the  latter 
annuity  to  be  cumulative,  as  the  word  "servant"  did  not  express  the  motive, 
but  was  only  descriptive.     So  in  Ridges  v.  Morrison,  1  Bro.  C  C  388,  the 
testator  by  his  will  gave  several  legacies,  and  among  the  rest,  to  Nicholas  and 
Mary  Layton,  the  children  of  his  nephew  Isaac  Layton,  £500  each;  and  by  a 
codicil,  written  under  his  will,  he  gave  to  T.  Ashley  £20 ;  and  "  to  Nicholas 
Layton,  that  I  put  apprentice  to  a  grocer,  near  Cripplegate,  £500  j"  Lord 
Thurlow  held  that  Nicholas  Layton  was  entitled  to  both  legacies.     "  Where," 
said  his  Lordship,  "  the  same  quantity  is  given,  with  any  additional  cause 
assi"-ned  for  it,  or  any  implication  to  show  that  the  testator  meant  that  the 
same  thino-,  prima  facie  should  accumulate,  the  Court  has  decided  in  favor  of 
the  accumulation.     In  the  present  case,  it  happens  that  an  additional  cause  or 
mark  of  favor  has  been  mentioned  in  the  codicil,  which  proves  that  the  testator 
meant  and  intended  an  accumulative  legacy.     Considering  the  slight  inferences 
made  in  former  cases*  (and  which,  I  must  own,  have  tended  to  throw  property 
into  jeopardy  and  uncertainty,)  such  an  inference  as  arises  in  this  case  is  suffi- 
cient to  turn  it  the  other  way,  and  to  induce  the  Court  to  say,  that  it  operates 
as  an  accumulation.     In  the  will,  the  legacy  of  £500  is  given  to  Nicholas 
Layton,  (the  testator  enumerating  him  among  the  other  children  of  Isaac  Lay- 
ton,)  upon  the  general  consideration  of  favor  which  the  testator  *bore 
L  "     -I  towards  the  family;  the  other  legacy  of  £500  in  the  codicil  is  given 
■with  this  additional  mode  of  description  adjoined  to  it :  '  To  Nicholas  Layton, 
the  child  whom  I  have  put  out  an  apprentice;'  which  circumstance  marks  the 
legatee  as  a  peculiar  object  of  favor,  and,  consequently,  such  an  inference  of 
the  testator's  intention  as  to  induce  the  Court  to  say  it  is  an  additional  legacy." 
And  see  Mackinnon  v.  Peach,  2  Kee,  555.     It  ought,  however,  to  be  men- 
tioned, that  Lord  Thurlow,  in  Ridges  v.  Morrison,  though  professing  to  ad- 
here to  the  case  of  Iloolcy  v.  Ilatton,  yet  says,  that  where  the  same  quantity 
has  been  given,  and  no  additional  reason  is  assigned  for  a  repetition  of  the 
gift,  the  Court  has  inferred  the  testator's  intention  to  be  the  same,  and  has 
rejected  the  accumulation:  1  Bro.  C  C  393;  and  see  Moggridge  v.  Thack- 
icell,  1  Yes.  jun.  473,  and  the  remarks  of  Sir  W.  Grant,  in  Beiiyonw.  Benijon,. 
17  Ves.  42,  upon  what  Lord  Thurlow  said  in  those  cases,  which  has  probably 
been  misreported ;  for  it  has  been   clearly  settled,  as  was  laid  down   in  the 
principal  case,  that  the  mere  fact  of  the  gift  of  equal  legacies,  by  different 
instruments,  will  not  indicate  an  intention  against  accumulation.     See,  also, 
Lohley  V.  Stocks,  19  Beav.  392. 

Nor  will  the  presumption  tliat  repetition  only,  and  not  accumulation  was  in- 
tended, arise,  although  the  same  motive  be  expressed  in  different  instru- 
ments, if  the  sums  are  different.  Thus,  in  llurst  v.  Beach,  5  JMadd.  352, 
the  testatrix  by  licr  will,   after  giving  several  legacies,  adds,  "  I  also  give 


HOOLEY     V.     HATTOTSr.  543 

and  bequeatli  to  John  Bach  (meaning  John  Beach,)  now  living  with  me, 
the  sum  of  £300  ;  all  which  said  legacies  I  direct  and  desire  may  be  paid 
immediately  after  my  decease,  and  bear  legal  interest  from  my  death  till  paid." 
By  a  codicil,  after  giving  several  legacies  of  £500  each,  the  testatrix  adds, 
''  To  my  man-servant,  John  Beach,  a  like  legacy  or  sum  of  £500."  The  tes- 
tatrix then  gives  a  like  sum  of  £500  to  her  maid-servant ;  and  all  these  lega- 
cies she  directed  to  be  paid  at  the  end  of  six  months  after  her  decease.  Sir 
J.  Leach,  M.  R.,  held  that  John  Beach  was  entitled  to  both  legacies.  "  The 
presumption,"  said  his  Honor,  "  cannot  be  raised  in  this  case,  although  it  be 
admitted  that  the  motives  are  the  same,  inasmuch  as  the  sums  are  different ; 
and  upon  the  face  of  these  instruments  the  defendant  is  entitled  to  both  sums." 
And  see  Lord  v.  Sutcliffe,  2  Sim.  273. 

Where,  in  different  testamentary  instruments,  the  effect  of  the  first  gift 
would  depend  in  some  measure  on  the  events  which  should  happen  amongst 
the  legatees,  repeated  bequests  have  been  construed  as  substitutionary,  from 
changes  among  the  legatees,  or  alterations  in  their  position,  which  had 
occurred  between  the  dates  of  *the  several  instniments.  Thus,  in  r^.^ni-i 
Allen  V.  Callow,  3  Ves.  289,  the  testatrix,  by  will,  dated  in  April, 
1774,  gave  £500  in  trust  for  E.  B.  for  life,  with  remainder  to  her  children 
living  at  her  death.  E.  B.  died  in  July,  1782,  leaving  four  children.  In 
December,  1782,  one  child  died.  By  a  codicil  of  May,  1785,  the  testatrix 
gave  to  the  three  surviving  children,  by  name,  the  sum  of  £500  in  certain 
specified  proportions,  and  directed  that  the  £500  should  be  vested  in  the  name 
of  one  of  the  trustees  in  the  will.  Lord  Alvanley,  after  noticing  that  in  one 
instance,  where  the  testatrix  intended  a  second  legacy  to  be  additional,  she 
had  so  expressed  herself  in  terms,  drew  his  conclusion,  that  £500  given  by  the 
codicil  was  a  substitution  for  that  given  by  the  will,  in  consequence  of  the 
altered  state  of  the  family.  In  Osborne  v.  The  Duke  of  Leeds,  5  Ves.  369, 
the  testator  gave  £10,000  to  a  son  named,  and  £10,000  each  to  after-born 
children.  By  a  codicil,  he  afterwards  gave  £10,000  to  a  child  by  name,  born 
after  the  date  of  his  will,  and  a  few  weeks  before  the  date  of  the  codicil. 
Lord  Alvanley,  after  adverting  to  the  leaning  of  the  Court  against  double  por- 
tions, relied  upon  the  birth  of  the  child  after  the  will  as  explanatory  of  the 
reason  why  the  codicil  was  made.  With  reference  to  these  cases,  it  has  been 
observed  by  Sir  J.  Wigram,  Y.  C,  in  Lee  v.  Pain,  4  Hare,  243,  "  that  the 
disposition  by  the  first  instrument  was  in  a  sense  contingent,  or  at  least  de- 
pendent for  its  results  upon  future  events  affecting  the  class  of  persons  exist- 
ing, or  to  exist,  in  whose  favor  the  gift  was  made;  and  between  the  original 
and  the  later  instrument,  circumstances  occurred  which  enabled  the  testator 
to  provide  with  certainty  for  that  which,  at  the  time  of  making  the  will,  was 
necessarily  contingent.  The  Court  thought  the  inference  irresistible,  that  a 
testamentary  disposition,  adapted  only  to  the  altered  circumstances  of  the 
case,  must  necessarily  have  been  intended  to  supersede  the  earlier  bequest." 

Where  a  second  instrument  expressly  refers  to  the  first,  although  the  lega- 
cies given  in  each  to  the  same  person  may  be  of  different  amounts,  it  may 


544  REPETITION     OF     LEGACIES. 

appear,  from  intrinsic  evidence,  upon  the  true  construction  of  the  words  in 
the  second  instrument,  that  the  latter  gift  was  intended  to  be  substitutional: 
Tlie  Mayor  of  London  v.  Russell,  Rep.  t.  Finch,  290  ;  Martin  v.  Drink- 
water,  2  Beav.  215 ;  Bristow  v.  Bristoio,  5  Beav.  289 ;  Currie  v.  Pye,  17 
Ves.  462. 

So,  where  a  codicil  furnishes  intrinsic  evidence  that  the  testator  is  thereby 
revising,  explaining,  and  qualifying  his  will,  legacies  may  be  construed  to  be 
substitutional :  3Ioggrid<je  v.  Thackwell,  1  Yes.  jun.  464 ;  3  Bro.  C.  C  517  ; 
Fraser  v.  Byng,  1  Russ.  &  My.  90. 

P^^pp.,  Where  a  later  instrument,  as  to  the  legacies,  appears  to  be  a  *mere 
copy  of  the  former,  it  will  so  far  be  held  substitutional.  Thus,  in 
Coote  v.  Boyd,  2  Bro.  C  C.  521,  Belt's  edit..  Sir  Eyre  Coote  by  his  will  had 
disposed  of  several  real  estates,  and  of  his  personal  estate.  Afterwards  going 
to  India,  he  made  a  codicil  to  his  will,  dated  9th  October,  1780,  beginning 
with  the  words,  "  this  is  a  codicil  to  the  will,"  &c. ;  by  this  codicil  he  ratified 
his  will,  and  gave  a  legacy  to  his  wife  of  £10,000  ;  he  gave  several  other  lega- 
cies, and  made  his  brother,  the  Dean  of  Kilfenora,  residuary  legatee.  He 
afterwards  went  to  a  different  part  of  India,  and  then  made  another  codicil,  in 
December,  1780,  in  nearly  the  same  words  with  the  former,  and  the  residuary 
legatee  the  same  :  it  contained  only  one  alteration, — a  legacy  to  a  Miss 
Monkton.  It  was  insisted  by  the  legatees^  that  these  were  duplicated  lega- 
cies. But  Lord  Thurlow  held,  that  the  last  codicil  alone  should  stand,  it 
being  evidently  intended  to  be  substituted  for  the  first.  "All  the  cases,"  said 
his  Lordship,  "  were  gone  through  in  argument,  from  the  civil,  the  canon 
and  our  own  law.  I  do  not  repeat  them,  because  I  refer  entirely  to  the  argu- 
ment of  Mr.  Justice  Aston,  in  Ilooley  v.  Hatton,  who  went  through  the  doc- 
trine of  them  all  with  a  particularity,  method,  and  sufficiency,  seldom  to  be 
met  with ;  and  from  that  argument,  I  take  it,  was  the  result,  that  when  the 
same  legacy  is  given  in  a  will  and  a  codicil,  the  Court  generally  takes  it  as 
accumulative,  but  that  the  Court  has  not  considered  the  presumption  as  very 
strong,  but  slight  circumstances  have  been  held  to  control  it.  Where  it  is 
evident  the  testator  meant  to  repeat  the  legacies,  they  are  not  duplicated.  I 
think  here  the  testator  meant  to  leave  but  one  codicil,  and  only  to  add  the 
legacy  to  Miss  Monkton.  It  would  be  extraordinary  he  should  repeat  exactly 
the  same  legacies  to  persons  standing  in  so  different  degrees  of  relationship  to 
him  as  the  several  legatees,  and  that  the  residuary  clause  should  be  exactly  the 
same  in  both."  And  see  Barclay  v.  Waimoright,  3  Ves.  462 ;  Attorney- 
General  V.  Ilarley,  4  Madd.  263  ;  Hemming  v.  Gurrey,  2  S.  &  S.  311 ;  1 
Bligh,  N.  S.  479  J  Gillespie  v.  Alexander,  2  S.  &  S.  145;  Campbell  v.  Lord 
Radnor,  1  Bro.  C.  C.  271  ;  and  see  DuJ^e  of  St.  Albans  v.  Beandcrk,  2  Atk. 
636,  some  remarks  in  which  cannot  be  reconciled,  with  the  more  modern 
authorities. 

In  the  class  of  cases  last  referred  to,  all  the  legatees  mentioned  in  the  will, 
except  such  as  afterwards  died,  or  such  servants  as  had  quitted  their  service, 
were  provided  for  in  the  codicil ;  it  might,  therefore,  be  argued,  that  it  may 


nOOLEY     V.     HATTON.  545 

have  been  intended  to  substitute  the  codicil  fur  that  integral  part  of  the  will 
by  ■which  the  legacies  arc  given.     If,  however  the  codicil  does  not  extend  to 
all  the  legacies  in  the  will,  and  no  explanation  *can  be  offered  why  r*9qp-i 
some  are  named  in  the  codicil,  and  others  omitted,  the  case  will  be 
different.     See  Lee  v.  Pain,  4  Hare,  201,  24G. 

It  is  observed  in  a  note  to  1  Russ.  &  My.  102,  that  if  different  instruments 
are  exactly  co-extensive  in  their  provisions,  and  in  other  respects  are  so  nearly 
identical  as  to  satisfy  the  judge  that  they  could  never  be  intended  to  exist 
together,  probate  will  be  granted  only  of  the  latest  in  date,  and  the  others  will 
be  held  to  be  virtually  revoked  :  Ndhucn  v.  Metlnien,  2  Phillim.  416.  And 
parol  evidence  will  be  resorted  to,  if  necessary,  to  assist  in  determining  the  in- 
tention :  Ibid.  But  where  testamentary  papers,  very  similar  in  form,  and 
embracing  the  same  general  range  of  objects,  still  present  such  discrepancies 
that  one  cannot  amount  to  more  than  a  partial  revocation  or  repetition  of  the 
rest,  the  Prerogative  Court  allows  all  of  them  to  be  proved,  and  leaves  it  to 
courts  of  equity  to  exercise  their  own  judgment  on  the  question  of  addition  or 
substitution,  whenever  those  Courts  are  called  upon  to  construe  their  effect 
for  the  purpose  of  determining  the  rights  of  legatees. 

Legacies  of  quan'titi/  given  hi/  the  same  instrument. — Where  legacies  of 
quantity  in  the  same  instrument,  whether  a  will  or  a  codicil,  are  given  to  the 
same  person  simpliciter,  and  are  of  equal  amount,  one  only  will  be  good,  the 
repetition,  according  to  the  doctrine  of  the  civil  law,  being  considered,  though 
strangely,  in  Mr.  Justice  Aston's  opinion,  to  arise  from  forgetfulness;  nor 
will  small  differences  in  the  way  in  which  the  gifts  are  confei'red  afford  in- 
ternal evidence  that  the  testator  intended  that  they  should  be  cumulative. 
Thus,  in  Greenivood  v.  Greenicoocl,  1  Bro.  C.  C.  31,  n.,  the  testatrix  gave 
*'  to  her  niece  Mary  Cook,  the  wife  of  John  Cook,  £500,"  and  afterwards  in 
the  same  will,  amongst  many  other  legacies,  ''  to  her  cousin  Mary  Cook  £500 
for  her  own  use  and  disposal,  notwithstanding  her  coverture."  Lord  Apsley 
declared,  that  Mary  Cook  was  entitled  to  one  legacy  only  of  £500,  and  that 
the  same  was  for  her  separate  use.  In  Garth  v.  Meyrich,  1  Bro.  C.  C  30,  the 
first  bequest  was,  "  I  give  to  A.  £1000  Old  South  Sea  Annuities,  to  be  trans- 
ferred into  her  own  name;"  and  then,  towards  the  close  of  the  will,  "  I  give 
to  A.  £1000  Old  South  Sea  Annuities  as  aforesaid ;"  it  was  endeavoured  to 
support  them  as  separate  legacies,  but  A.  was  held  only  entitled  to  one.  In 
Ilolfurd  v.  Wood,  4  Ves.  7G,  the  testator,  after  disposing  of  copyholds,  lease- 
holds, and  giving  a  legacy,  adds,  "  To  Thomas  Newman  I  give  an  annuity  of 
£30  for  his  life,  payable  quarterly  at  the  usual  quarter-days,  the  first  pay- 
ment to  be  made  on  such  of  the  same  days  as  shall  first  happen  after  my 
death ;"  and  after  giving  some  specific  and  pecuniary  *legacies  and  r^2<)7T 
an  annuity,  the  testator  says,  "  I  give  to  Thomas  Newman,  the  butler, 
£30  a  year  for  his  life,"  Lord  Alvanley,  M.  R.,  held,  that  the  second  annuity 
of  £30  given  to  the  defendant,  Thomas  Newman,  was  not  to  be  considered  as 
accumulative,  but  as  the  same  annuity  of  £30  given  to  him  in  the  prior  part 
of  the  will. 

VOL.  II. — 35 


546  REPETITION     or     LEGACIES. 

So,  ia  Manning  v.  Thesiger,  3  My.  &  K.  29,  the  will  of  Mary  Welsford, 
made  in  execution  of  a  power,  contained  the  following  bequests  : — "  I  give  to 
my  brother,  C.  T.,  of  Loudon,  from  and  immediately  after  the  decease  of  my 
husband  K.  W.,  and  in  default  of  issue  of  our  marriage,  £100  sterling;  also 
to  my  said  brother  C.  T.  an  annuity  of  £50  sterling  for  life,  to  commence  from 
the  day  of  the  death  of  my  husband,  R.  "W.,  and  such  default  of  issue  as  afore- 
said, and  to  be  paid  to  him  half-yearly;  also  to  my  brother  C.  T.,  of  or  near 
the  city  of  London,  the  sum  of  £100  sterling."  The  testatrix  concluded  her 
will  by  directing,  that  all  and  every  the  legacies  and  sums  of  money  given  by 
her  will,  wherein  no  time  was  specified  as  to  the  payment  thereof,  were  to  be 
paid  within  three  months  after  her  husband's  decease  and  such  default  of  issue 
as  aforesaid.  There  was  no  issue  of  the  marriage.  Lord  Cottenham,  then 
Master  of  the  Rolls,  was  of  opinion  that  the  testatrix  intended  only  to  give  a 
single  legacy  of  £100  to  C.  T.  And  see  Brine  v.  Ferrier,  7  Sim.  549;  Early 
V.  Benhow,  2  Coll.  842;   Earhj  v.  3Iiddleton,  14  Beav.  453. 

Where,  however,  the  legacies  given  by  the  same  instrument  are  of  unequal 
amount,  and  not  merely,  as  might  be  inferred  from  Mr.  Justice  Anson's  re- 
marks, where  a  larger  sum  is  given  after  a  less,  they  will  be  considered  accu- 
mulative. See  Yochnoy  v.  Hansard,  3  Hare,  G22.  In  Gurry  v.  Pile,  2  Bro. 
C.  C.  225,  the  testator  made  his  will  as  follows  : — ''I  give  to  her  (E.  C.'s)  son 
J.  C.  £1000,  when  he  arrives  at  the  age  of  twenty-one  years,  the  interest  of 
which  to  be  paid  to  his  mother  till  he  arrives  at  the  age  of  ten  years;  and 
then  I  desire  my  executors  will  take  him  and  put  him  to  a  proper  school  for 
his  education  ;  and  when  he  arrives  at  that  age,  I  desire  they  will  expend  out 
of  my  estate  £100  a  year  till  he  arrives  at  the  age  of  twenty-one  years,  and 
then  I  give  him  £5000."  The  question  was,  whether  John  Curry  should  take 
both  legacies  or  only  one ;  and  Mr.  Madoeks,  for  J.  C,  cited  the  fourth  case 
put  in  Mr.  Justice  Aston's  judgment  in  Ilooley  v.  Hatton :  "  As  to  a  larger 
sum  after  a  less,  where  they  are  in  the  same  instrument,  the  two  sums  are  not 
blended,  but  the  legatee  has  two  legacies ;  and  the  heir  must  show  that  the 
one  was  meant  to  be  blended  with  the  other,  the  presumption  being  in  favor 
of  what  is  written."  Lord  Thurlow  held,  that  J.  C.  was  entitled  to  both  lega- 
cies. See  also  Windha^ii  v.  *  Windham,  Rep.  t.  Finch,  267;  Baylee 
l*'^^^^  V.  Quin,  2  D.  &  War.  110;  Adnani  v.  Co/e,  fi  Beav.  353.  And  see 
Hartley  v.  Ostler,  22  Beav.  449 ;   Brcnnan  v.  Moran,  6  Jr.  Ch.  Rep.  126. 

Infernal  evidence  of  Intention.'] — The  intention  of  the  testator,  when  it  can 
be  collected  from  the  instrument  containing  two  legacies,  will,  of  course,  over- 
ride any  presumption  which  might  be  raised  in  the  absence  of  such  intention : 
Yockney  v.  Hansard,  3  Hare,  620.  And  although  legacies  given  by  different 
instruments  are  equal,  if  they  were  intended  by  the  testator  to  be  cumulative, 
(Lohley  V.  Stocks,  19  Boav.  392,)  or  if  tliough  differing  in  amount  the  latter 
was  intended  to  be  substitutional,  {liussdl  v.  Dickson,  4  II.  L.  C.  293;  4  Ir. 
Eq.  Rep.  339,)  the  intention  will  be  carried  into  effect. 

It  may  here  be  observed,  that  if  a  testamentary  paper,  incomplete  of  itself, 
(but  being  made  before  the  1st  of  January,  1838,  and  admitted  to  probate,) 


HOOLEY     V.     HATTON.  547 

contains  internal  evidence  of  an  intention  to  make  an  entirely  new  disposition, 
and  for  that  purpose  to  undo  all  that  had  been  done  by  a  previous  complete 
will,  effect  will  be  given  to  the  new  disposition,  as  far  as  it  goes,  in  substitu- 
tion for  the  former;  but  the  former  one  will  be  treated  as  operative  so  far  as 
no  substituted  disposition  is  provided  in  its  place  :  Kidd  v.  North,  14  Sim, 
4G3;  S.  C,  2  Ph.  91  ;  Jackson  v.  Jackson,  2  Cox,  35.  But  as  far  as  the 
question  depends  upon  the  latter  instrument  being  incomplete,  it  cannot  arise 
upon  any  instrument  made  after  the  1st  of  January,  1838. 

If  probate  be  granted  in  the  Ecclesiastical  Court  to  two  writings,  as  a  will 
and  codicil,  it  will  be  conclusive  to  show  that  they  must  be  considered  as  dis- 
tinct instruments,  although  they  are  both  written  on  the  same  paper :  Baillie 
V.  Butterjield,  1  Cox,  392;  Camphelly.  Jjord  Radnor,  1  Bro.  C.  C.  272; 
Walsh  V.  Gladstone,  1  Ph.  294 ;  but  see  Martin  v.  Drinhwater,  2  Beav.  215. 
So,  if  two  instruments  have  been  admitted  to  probate  as  one  testament,  they 
must  for  all  purposes  be  considered  as  one  instrument  only  :  Heming  v.  Clutter- 
huck,  1  Bligh,  N.  S.  491,  492;  Brine  v.  Ferrier,  7  Sim.  549.  In  The  Duke 
of  St.  Albans  v.  Beauclerk,  2  Atk.  636,  where  a  testatrix,  at  the  commence- 
ment of  her  codicils,  declared  that  they  should  be  part  of  her  will  Lord  Hard- 
wicke  held,  that  they  were  to  receive  the  same  construction  as  if  they  were 
incorporated  in  the  will,  and  formed  only  one  instrument.  See  Brennan  v. 
Moron,  6  Ir.  Cb.  Kep.  126. 

With  regard  to  the  present  tendency  of  the  decisions  upon  the  doctrine  of 
the  repetition  of  legacies,  it  has  been  said,  that  ''  there  is  always  a  difficulty 
pressing  upon  the  mind  of  the  Judge  in  determining  what  the  real  meaning 
of  *the  testator  is,  within  the  rule  of  law,  and  how  far  he  can,  consist-  _^oqot 
ently  with  settled  principles,  effectuate  the  intention.  In  later  times,  ^  ~  -" 
there  certainly  has  been  a  disposition  to  get  rid  of  this  difficulty,  and  to  hold 
legacies  to  be  cumulative.  The  inclination  of  the  Court  has  been  rather  to 
cut  the  knot  than  to  untie  it."  Per  Lord  Chancellor  Sugden,  in  Russell  v. 
Dickson,  2  D.  &  War.  137;  and  see  Lee  v.  Pain,  4  Hare,  218,  236. 

Where  a  legacy  is  given  by  a  codicil  in  substitution  for  a  legacy  given  by  a 
previous  instrument,  upon  a  revocation  of  the  last  legacy,  the  former  will  not 
be  set  up  again.     Boulcott  v.  Boidcotf,  2  Drew.  25. 

As  to  the  admission  of  extrinsic  evidence.^ — Sir  John  Leach,  M.  R.,  in 
ITurst  V.  Beach,  5  Madd.  351,  where  a  legacy  of  £300  was  given  by  the  will, 
and  a  legacy  of  £500  by  the  codicil,  has  very  fully  considered  the  question, 
how  far  parol  evidence  is  admissible  to  prove  whether  a  testator  intended  a 
legacy  to  be  substitutional  or  accumulative.  "  Upon  the  question,"  said  his 
Honor,  "  whether  evidence  is  admissible  to  prove  that  the  testatrix  did  not 
mean  that  the  defendant  should  take  both  sums,  there  are  no  decisions  in 
courts  of  equity.  There  are  obiter  dicta  for  the  admission  of  such  testimony; 
but,  in  Osborne  v.  The  Duke  of  Leeds,  (5  Ves.  369,)  the  point  was  fully 
argued,  and  Lord  Alvanley  appears  to  have  inclined  against  receiving  it.  It 
did  not,  however,  become  necessary  there,  to  decide  the  question.  It  is  to  be 
collected  from  the  Digest,  that  it  was  admitted  by  the  civil  law." 


548  REPETITION     OF     LEGACIES. 

"  This  Court  has  no  original  jurisdiction  in  testamentary  matters ;  it  acts 
with  respect  to  them  only  upon  the  ground  of  administering  a  trust,  and  is 
bound  to  adopt,  in  questions  of  legacy,  the  principles  and  rules  of  the  Eccle- 
siastical Court.  I  found  it  necessary,  therefore,  to  direct  inquiry  to  be  made 
in  that  Court  upon  this  point,  and  the  answer  that  I  have  received  is,  that  no 
decision  has  taken  place  there  upon  this  question,  and  that  no  settled  opinion 
is  formed  upon  it. 

"  It  remains  then  to  be  considered  upon  the  principles  of  evidence  which 
are  received  in  our  own  law.  Our  primary  principle  is,  that  evidence  is 
not  admissible  to  contradict  a  written  instrument.  In  some  cases  courts 
of  equity  raise  a  presumption  against  the  apparent  intention  of  a  testamen- 
tary instrument.  And  there  they  will  receive  evidence  to  repel  that  pre- 
sumption :  for  the  effect  of  such  testimony  is  not  to  show  that  the  testator  did 
not  mean  what  he  has  said,  but  on  the  contrary,  to  prove  that  he  did  mean 
what  he  has  expressed. 

"  Thus,  where  the  Court  raises  the  presumption  against  the  intention  of  a 
double  jrift,  bv  reason  that  the  sums  and  the  motive  are  *the  same  in 
L  ^  J  both  instruments,  it  will  receive  evidence  that  the  testator  actually 
intended  the  double  gift  he  has  expressed.  In  like  manner,  evidence  is  received 
to  repel  the  presumption  raised  against  an  executor's  title  to  the  residue,  from 
the  circumstance  of  a  legacy  given  to  him,  and  to  repel  the  presumption  that 
a  portion  is  satisfied  by  a  legacy. 

"  In  all  these  cases  the  evidence  is  received  in  support  of  the  apparent  effect 
of  the  instrument,  and  not  against  it. 

"  Here  the  evidence  tendered  is  not  in  support  of  the  apparent  effect  of  the 
instrument,  but  directly  against  it.  This  codicil  leaves  unrevoked  the  former 
legacy  of  £300  to  the  defendant,  and  makes  to  him  a  further  substantive  gift 
of  £500.  The  evidence  tendered  is,  that  the  testatrix  did  not  mean  this  as  a 
further  gift  of  £500,  but  meant  to  substitute  the  £500  in  the  place  of  the 
former  £300. 

"  I  am  of  opinion  therefore,  that  such  evidence  cannot  be  received  without 
breaking  in  upon  the  primary  rule,  that  parol  evidence  is  not  admissible  against 
the  expressed  effect  of  a  written  instrument."  See  also  Guy  v.  h^har'p,  1  My. 
&  K.  589,  and  Hall  v.  IIUl,  1  D.  &  War.  94,  116. 

The  same  view  is  taken  by  the  Vice-Chancellor  Wigram,  in  the  important 
case  of  licc  v.  Pain,  4  Hare,  216.  "  If,"  said  his  Honor,  "  each  of  the  instru- 
ments simply  gives  a  legacy  to  the  same  individual,  it  would  manifestly  con- 
tradict the  effect  of  one  or  other  instrument,  if  the  legatee  were  not  allowed  to 
claim  both  legacies,  and  accordingly  he  would  in  that  simple  case  be  entitled 
to  both  ;  and,  as  the  right  to  both  legacies  is  in  such  cases  found  in  the  construc- 
tion and  effect  of  the  instruments,  no  extrinsic  evidence  is  admissible  to  prove 
that  the  legatee  was  intended  to  take  one  legacy  only.  In  support  of  this,  it 
will  be  sufficient  to  refer  to  the  cases  of  Hurst  v.  Beach,  (5  Madd.  351,)  and 
JIall  V.  Hill,  (1  I).  &  War.  O-l.)  I  have  noticed  this  point,  because  it  was 
argued  that  the  rule,  which  in  the  simple  case  of  two  legacies  given  by  two 


nOOLEY     V.     HATTON.  549 

different  instruments,  awards  both  to  tlie  legatee,  was  a  mere  legal  presump- 
tion, and  it  was  said,  a  presumption  liglitly  considered.  That  is  not  a  correct 
view  of  the  case.  If  the  right  of  the  legatee  in  such  cases  to  both  legacies 
depended  upon  a  legal  presumption  only,  evidence  would  be  admissible  to 
rebut  it ;  which,  according  to  the  cases  I  have  referred  to,  is  not  permitted. 
To  admit  such  evidence  in  such  a  case,  would  be  to  construe  a  writing  by 
parol  evidence.  I  do  not  deny  that  cases  may  be  found  in  which  the  right  of 
the  legatee  in  such  cases  to  both  legacies  is  spoken  of  as  depending  upon 
presumption  )  but  I  believe  it  will  be  found  that  the  word  "  presumption"  has 
in  some  at  least  of  such  cases  been  used  not  in  a  very  strict  and  accurate  sense, 
not  as  *meaning  an  inference  raised  by  courts  of  law,  independently 
of  or  against  the  words  of  an  instrument,  but  that  the  word  has  been  L  ^ 
used  to  denote  an  inference  in  favor  of  a  given  construction  of  particular  words. 
Thus,  for  instance,  in  Coote  v.  Boyd,  (2  Bro.  C.  C.  527,)  Lord  Thurlow  says, 
when  the  presumption  arises  from  the  construction  of  words  simply  qua  words, 
no  evidence  can  be  admitted  as  to  the  consequence  of  giving  effect  to  this  rule 
of  law. 

We  may  conclude,  from  these  authorities,  that  where  the  Court  itself  raises 
the  presumption  against  double  legacies, — where,  for  instance,  two  legacies  of 
equal  amount  are  given  by  one  instrument, — parol  evidence  is  admissible  to 
show  that  the  testator  intended  the  legatee  to  take  both,  for  that  is  in  support 
of  the  apparent  intention  of  the  will ;  but  where  the  Court  does  not  raise  the 
presumption, — where,  for  instance,  legacies  of  equal  amount  are  given  sim- 
pliciter  by  different  instruments, — parol  evidence  is  not  admissible  to  show 
that  the  testator  intended  the  legatee  to  take  one  only,  for  that  is  in  opposi- 
tion to  the  will.     See  Hall  v.  Hill,  1  I>.  &  War.  116. 

Extrinsic  evidence  is  admissible  to  show  the  circumstances  of  the  testator 
at  the  time  of  making  his  will,  so  as  to  enable  the  Court  to  place  itself  in  the 
position  of  the  testator:  Ilartm  v.  Hnnkicater,  2  Beav.  215;  Gui/  v.  Sharp, 
1  My.  &  K.  589. 

How  far  a  substitutional  or  additional  Lef/aay  is  liahlc  to  the  Incidents  or 
Conditions  of  the  original  Legacy. 1 — As  a  general  rule,  where  one  legacy  is 
given  merely  in  substitution  for  another,  it  will,  in  the  absence  of  any  expres- 
sion of  a  contrary  intention  on  the  part  of  the  testator,  be  liable  to  the  same 
incidents  as  the  legacy  for  which  it  is  substituted;  {Cooper  v.  Day,  3  Mer. 
154;  Shaftesbury  v.  Marlborough,  7  Sim.  237;  Bristow  v.  Bristow,  5  Beav. 
289 ;)  but  that  will  not  be  the  result  where  the  second  legacy  is  a  distinct  and 
substantive  bequest;  Chatteris  v.  Young,  2  Russ.  183;  also  Leacroft  v.  May- 
nard,  3  Bro.  C.  C.  233;  1  Ves.  jun,  279;  Crowder  v.  Clowes,  2  Ves.  jun. 
449,  450 ;  Alexander  v.  Alexander,  5  Beav.  518. 

An  additional  legacy,  although  not  so  expressed,  will  in  general  be  held 
subject  to  the  same  incidents  and  conditions  as  the  first  legacy.  Thus,  if  after 
a  legacy  given  by  will  to  a  married  woman  to  her  separate  use,  an  additional 
legacy  is  given  to  her  by  a  codicil,  she  will  take  it  to  her  separate  use ; 


550 


REPETITION     or     LEGACIES. 


Day  V.  Croft,  4  Beav.  561 ;  and  see  Warwick  v.  Eaxcldns,  5  De  Gr.  &  Sm. 

481. 

In  no  case,  however,  has  it  been  held,  that  the  hUter  gift  is  to  go  to  the 
parties  entitled  under  the  subsequent  limitations  of  the  former  gift.  "  I  quite 
concur,"  observed  Sir  W.  Page  Wood,  V.  C,  "  in  what  was  said  by  the  Lord 
r*oA.T]  Justice  Turner,  in  the  case  of  "^Moore's  Trust,  (10  Hare,  171,)  that 
'-  ^  "  where  there  is  a  gift  by  will  to  A.  for  life,  and  after  his  decease  to  B. 
and  then  another  gift  to  A.,  in  addition  to  what  was  before  given,  there  is  no 
authority  for  carrying  on  the  series  of  limitations  to  the  latter  gift,  so  as  to 
convert  it  into  a  gift  to  A.  for  life,  and  then  to  the  party  who  was  named  in 
the  former  gift  to  take  after  A.'s  death.  It  would  be  more  plausible  to  say, 
that  a  life  interest  only  was  given  to  A.  in  the  second  case,  but  that  would  be 
inconsistent  with  the  words  of  the  will :"   3Iann  v.  Fuller,  Kay,  024,  626. 

The  cases,  however,  have  not  gone  further  than  this  where  the  first  gift  is 
given  absolutely  to  the  party,  or  is  made  defeasible ;  the  second  gift  has  been 
held  to  be  given  upon  similar  terms;  for  example,  if  the  former  gift  were  ab- 
solute and  free  of  legacy  duty,  the  additional  gift  has  been  held  to  have  all  the 
same  incidents ;  so,  if  the  former  gift  is  to  be  lost  on  a  certain  event,  the  addi- 
tional gift  is  to  be  defeated  on  the  same  condition  :  Per  Sir  W.  Page  Wood, 
V.  C;  1  Kay,  620.     See  also  Overend  v.  Gurney,  7  Sim.  128. 


In  Dewitt  V.  Yatex,  10  Johnson, 
156,  the  testator  by  will,  bequeathed 
two  hundred  and  fifty  pounds  to  the 
children  of  his  daughter  Maria,  pay- 
able in  sums  of  fifty  pounds  to  each, 
on  coming  of  age,  or  marrying.  By 
a  subsequent  clause  of  the  same  will, 
he  devised  one-half  of  a  farm  to  his 
son-in-law,  Philip  Vanderbergh,  and 
directed  the  devisee,  in  consideration 
of  the  devise,  to  pay  the  children  of 
his  daughter  Maria,  two  hundred  and 
fifty  pounds,  with  a  similar  provision 
as  to  the  time  of  payment,  but  with 
the  omission  of  a  provision  contained 
in  the  first  bequest,  requiring  the 
shares  of  those  dying  in  the  life  of 
the  testator,  or  after  his  death/  to  be 
paid  to  the  survivors.  Under  these 
circumstances  it  was  held  by  the  court, 
that  the  second  legacy  was  a  mere  re- 


petition of  the  first,  and  that  a  pay- 
ment of  the  shares  of  the  legatees  by 
the  devisee,  was  a  bar  to  a  recovery 
against  the  executors.  "  This,"  said 
Kent,  C.  J.,  "  is  the  case  of  a  sum  of 
money  given  twice  in  the  same  instru- 
ment to  the  same  legatee.  The  gene- 
ral rule  on  this  subject,  from  a  review 
of  the  numerous  cases,  appears  evi- 
dently to  be,  that  where  the  sum  is 
repeated,  in  the  same  ivritiiig,  the  le- 
gatee can  take  only  one  of  the  sums 
bequeathed.  The  latter  sum  is  held 
to  be  a  substitution,  and  they  are  not 
taken  cumulatively,  unless  there  be 
some  evident  intention  that  they 
should  be  so  considered,  and  it  lays 
with  the  legatee  to  show  that  inten- 
tion, and  rebut  the  contrary  presump- 
tion. ]iut  where  the  two  bequests 
are  in  dijferent  instruments,  ashy  will 


HOOLEY  V.  HATTON. 


551 


in  the  one  case,  and  by  a  codicil  in 
the  other,  the  presumption  is  in  favor 
of  the  legatee,  and  the  burden  of  con- 
testing that  presumption  is  cast  upon 
the  executor.  The  presumption  either 
way,  whether  against  the  cumulation, 
because  the  legacy  is  I'epeated  in  the 
same  instrument,  or  whether  in  favor 
of  it,  because  the  legacy  is  by  differ- 
ent instruments,  is  liable  to  be  con- 
trolled and  repelled  by  internal  evi- 
dence, and  the  circumstances  of  the 
case;  (Godolphin's  Orphan  Legac}', 
part  3,  c.  26,  s.  46 ;  Swinb.  part  7,  c. 
21,  s.  13;  Duke  of  St.  Albans  v. 
Beauclerk,  2  Atk.  636 ;  Garth  v. 
Meyrick,  1  Bro.  30 ;  Ridges  v.  Moi'- 
rison,  lb.  389  ;  Hooley  v.  Hatton,  lb. 
390,  D.;  Wallop  V.  Hewitt,  2  Ch. 
Rep.  37 ;  Nexoport  v.  Kinaston,  lb. 
58;  James  v.  Semmes,  2  H.  Bl.  214; 
Allen  V.  Callen,  3  Vesey,  jun.  289  ; 
Barclay  v.  WainwrigJit,  lb.  462 ; 
Osborne  v.  Duke  of  Leeds,  5  Vesey, 
369.)  This  question  which  appears 
to  have  arisen  so  often,  and  to  have 
been  so  learnedly  and  ably  discussed, 
in  the  English  courts,  was  equally  fami- 
liar to  the  civil  law.  The  same  rule 
existed  there,  and  subject  to  the  same 
control.  (Dig.  30,  1.  34,  Dig.  22, 
3,  12,  and  the  notes  of  Grothofrede, 
lb.  Voet,  Com.  ad  Pand.  torn.  2,408, 
s.  34.)  And  Chancellor  D'Agues- 
seau,  in  his  Pleadings  in  the  case  of 
the  Heirs  of  Vaugermain,  (ffiuvres, 
tom.  2,  21,)  adopts  and  applies  the 
same  rule  to  a  case  arising  under  the 
French  law.  The  civil  law  puts  the 
case  altogether  upon  the  point  of  the 
testator's  intention  ;  but  then  if  the 
legacy  was  repeated  in  the  same  instru- 
ment, it  required  the  highest  and 
strongest  proof  to  accumulate  it.  Evi- 
dentissimis  j^^'obationibus  osfendatur 


testatorcm  muUiplicasse  legatum  vo- 
luisse. 

"■  In  the  present  case,  what  are  the 
intrinsic  circumstances  to  show  a  mani- 
fest intent  of  the  testator  to  multiply 
the  legacy  ?  The  only  material  varia- 
tion in  the  two  bequests  is,  tliat  in  the 
latter  instance,  the  legacy  was  charged 
upon  Philip  Vanderberg,  in  respect  of 
the  real  estate  to  him  devised.  But 
this  affords  no  evidence  of  an  inten- 
tion to  accumulate.  The  inference  is 
the  other  way.  It  was  only  strength- 
ening the  security  of  the  legacy  by 
means  of  the  charge.  There  was  no 
specified  object;  there  was  no  assign- 
ed reason,  or  cause,  as  respected  the 
legatees,  for  repeating  the  bequest. 
Courts  have  required  some  new  or 
additional  cause,  for  enlarging  the 
bounty,  before  they  have  held  it  ac- 
cumulative, unless  the  words  of  the 
will  clearly  showed  the  intent.  In  a 
will,  the  testator  gave  double  legacies 
to  his  daughters,  but  he  added,  in 
those  cases,  that  they  were  '  in  addi- 
tion' to  what  he  had  before  given ; 
and  the  master  of  the  rolls,  in  Bar- 
clay V.  Waiinvright,  said  that  he  laid 
considerable  stress  upon  this,  that 
where  the  testator  meant  addition,  he 
expressed  it.  The  whole  will  denotes 
throughout,  a  careful  and  studied  ap- 
portionment of  the  testator's  estate 
among  his  children,  according  to  his 
opinion  of  their  wants  and  circum- 
stances; and  he  imposed  several  trusts 
and  charges,  probably  with  a  view  to 
greater  accuracy  in  the  partition  of 
his  estate.  He  appoints  four  sons 
executors,  but  he  charges  his  funeral 
expenses  upon  three,  and  his  debts 
upon  two  of  them.  A  small  varia- 
tion in  the  direction  as  to  payment 
will  not  alter  the  construction.      la 


552 


REPETITION     OF     LEGACIES. 


Halford  V.  Wood,  (-t  Yes.  76,)  the 
legacy  was  an  annuity  of  thirty  pounds 
for  life,  and  in  the  one  instance  it  was 
declared  to  be  payable  quarterly,  and 
in  the  other  instance,  the  will  A^^as 
silent  as  to  the  payment,  and  yet  it 
was  not  held  accumulative.  So  also 
in  Greennood  v.  Greeiucood,  (1  Bro. 
31,  n.,)  the  one  legacy  was  simpl}'  to 
Mary  Cook,  '  for  her  own  use  and  dis- 
posing, notwithstanding  her  cover- 
ture;' and  yet  Lord  Bathurst  decreed 
that  she  was  entitled  to  one  legacy 
only. 

"  As,  then,  the  substituted  legacy, 
in  this  case,  has  been  paid  by  the  de- 
visee, on  whom  it  was  charged,  the 
defendant  is  entitled  to  judgment." 

The  same  question  arose  in  Jones 
V.  Creveliv(/'s  Exors,  4  Harrison,  127. 
The  testator  there  bequeathed  four 
hundred  dollars  to  each  of  his  grand- 
children, with  a  direction  that  the  in- 
terest should  be  paid^until  they  came 
of  age,  and  then  the  principal ;  and 
then  went  on  to  give  each  of  them 
a  further  legacy  of  four  hundred  dol- 
lars, payable  one  year  after  his  de- 
cease. Under  these  circumstances, 
it  was  held  by  a  divided  court,  that 
the  legacies  were  cumulative;  Horn- 
blower,  C.  J.,  resting  his  decision 
chiefly  on  the  ground,  that  as  both 
legacies  were  ip  the  same  clause  of 
the  will,  it  was  difficult  to  believe 
that  the  repetition  was  due  to  forget- 
fulness  or  oversight,  and  that  the  dif- 
ference in  the  times  of  payment  indi- 
cated a  diiference  of  purpose  on  the 
part  of  the  testator.  He  also  con- 
tended that  the  whole  question  should 
depend  on  the  intention  of  the^  testa- 
tor, as  gathered  from  the  four  corners 
of  the  will,  without  prejudice  from 
rtificial    presumptions,    and    denied 


that  the  occurrence  of  similar  be- 
quests in  the  same  instrument,  was  a 
valid  reason  against  giving  effect  to 
both.  But  on  the  subsequent  discus- 
sion of  tlie  case  before  the  Court  of 
Errors,  this  decision  was  reconsidered, 
and  it  was  decided,  that  where  lega- 
cies of  the  same  nature  and  to  the 
same  person,  occur  in  the  same  will, 
they  cannot  be  held  cumulative,  un- 
less there  is  some  indication  that  such 
was  the  purpose  of  the  testator ;  Cre- 
veling's  Exors  v.  Jones,  1  Zabriskie, 
573.  In  deciding  the  case,  the  court 
held  the  followino;  lanrruafre  : 

''  Upon  a  question,  whether  two  le- 
gacies shall  be  construed  to  be  cumu- 
lative or  not,  a  fair  and  forcible  argu- 
ment in  support  of  the  increase  may 
bo  drawn,  from  the  fact  that  they  are 
for  different  sums ;  or  the  sums  are 
stated  in  different  sections  of  the  will ; 
or  one  in  the  will  and  another  in  a 
codicil ;  or  the  sums  are  made  payable 
at  different  times,  or  out  of  different 
funds.  But  these  matters  must  ap- 
pear on  the  face  of  the  will  itself,  or 
will  and  codicil,  as  the  act  of  the  tes- 
tator himself,  and  not  be  a  mere  im- 
plication of  law  or  construction,  for 
this  would  be  settling  the  intention  of 
the  testator  in  a  doubtful  clause,  by 
other  doubtful  clauses.  These  lega- 
cies are  for  the  same  sums,  given  in 
the  same  section  which  also  provides 
for  their  payment.  And  the  addi- 
tion of  the  words,  "  out  of  my  estate," 
in  the  third  clause,  can  have  little 
weight,  for  all  the  legacies  are  charged 
on  his  estate.  Whether  the  grand- 
daughters were  to  have  a  legacy  of 
'1?400  each,  or  two  legacies  of  ^400 
each,  all  agree  is  a  question  of  inten. 
tion;  and  occupying,  as  the  entire  be- 
quest does,  but  ten  consecutive  lines, 


EX     PARTE     P  Y  E. 


553 


the  testator  must  be  presumed  to  have 
understood  what  that  intention  was, 
and  whether  he  was  carrying  it  out. 
No  inference  of  forgetfulness  or  con- 
fusion can  arise,  as  there  might,  if 
the  sums  were  in  different  parts  of  the 
will,  or  will  and  codicil,  or  involved 
with  other  bequests  or  devises.  If 
the  intention  of  the  testator  then  was 
to  give  8800  to  each  of  his  grand- 
daughters, that  intention  must  have 
existed  either  when  he  commenced 
drafting  or  dictating  the  8th  section, 
or  been  an  after-thought — if  tlie  for- 
mer, he  would  have  said  at  once,  I 
give  to  my  two  grand-daughters  each 
8800,  and  would  never  have  attempted 
indirectly,  obscurely,  and  by  halves, 
to  express  a  settled,  direct,  plain  and 
entire  determination.  If,  on  the  other 
hand,  it  was  an  after-thought,  and  the 
testator  concluded  to  give  a  further 
sum  of  $400  to  each  of  his  grand- 
daughters, knowing,  as  he  must,  what 
he  had  just  done,  and  what  he  had 
then  concluded  further  to  do,  he  would 
have  expressed  himself  explicitly,  and 


so  clearly  as  to  have  left  no  doubt  that 
his  last  intention  would  have  been 
understood  and  carried  into  effect;  he 
would  have  used  some  word  or  phrase, 
directly  indicating  that  the  last  8400 
was  an  addition  to  the  first  8400,  or 
at  least  to  show  that  it  was  not  the 
same;  he  would  have  begun  the  clause 
with  directing  his  executors  to  make 
an  additional  or  further  payment,  or 
the  payment  of  a  further  sum,  not 
with  a  mere  "further  order"  to  pay, 
and  he  would  not  have  concluded  it 
with  the  sentence,  "  in  full  of  the 
legacies  bequeathed  to  them." 

It  necessarily  follows,  from  the  rule 
that  legacies  of  the  same  sum  or  thing 
are  prima  facie  cumulative,  that  any 
proviso  which  may  be  attached  to  the 
second  bequest  will  also  qualify  the 
first;  because,  apart  from  other  rea- 
sons, the  subsequent  clauses  of  a  will 
are  viewed  as  expressing  the  testator's 
ultimate  purpose,  and,  therefore,  con- 
trol those  which  precede  them ;  Minor 
V.  Ferris,  22  Conn.  371. 


SATISFACTION. ADEMPTION. 

*PYE,  Ux  parte.  [*303] 

DUBOST,  Ux  parte. 

APPJL  2G,  29,  MAY  27,  JUxVE  13,  28,  1811. 
REPORTED  18  VES.  140. 

Satisfaction  of  a  legacy  by  a  Portion. — Ademption.] — As  a  general 
rule,  where  a  parent  gives  a  legacy  to  a  child,  not  stating  the  purpose  with  refer- 
ence to  ichich  he  gives  it,  he  is  understood  to  give  a  jiortion  ;  and,  in  conse- 
quence of  the  leaning  against  double  p)ort ions,  if  the  parent  afteru-ards  ad- 
vances a  portion  on  the  marriage  of  the  child,  the  presumption  arises  that 
it  was  intended  to  he  a  satisfaction  of  the  legacy,  either  wholly  or  in  part ; 
and  the  rule  is  aj^ijiUcahle  where  a  person  puts  himself  in  loco  parentis. 


554  SATISFACTION.  —  ADEMPTION. 

i\^  such  presumption  ai'ises  in  the  case  of  a  stranger,  or  of  a  natural  child, 
where  the  donor  has  not  put  himself  in  loco  j^nrentis,  if  the  sulsequent  ad- 
vance is  not  proved  to  be  for  the  very  pnrp>ose  of  satisfy imj  the  legacy  ;  and, 
therefore,  the  legatee  will  he  entitled  to  holh. 

William  Mowbray,  by  his  will,  dated  the  10th  of  April,  180G,  giving 
liis  wife  the  residue  of  his  property  after  payment  of  his  debts,  except  the 
sum  after-mentioned,  among  other  legacies  gave  as  follows : — "  /  give  and 
hequeath  the  sum  of  £4000  sterling  to  Louisa  Hortensia  Garos,  daughter  of 
John  Louis  Garos,  formerly  of  Berwick  street,  Westminster;  the  like  sum  of 
£4000  to  Emily  Garos,  her  sister,  and  £4000  to  Julia  Garos,  her  other  sister; 
and  in  case  of  the  death  of  one  of  the  three,  I  desire  that  the  legacy  may  be 
divided  equally  betwixt  the  two  surviving  sisters ;  and  in  case  of  the  death 
of  two  of  them,  I  desire  the  whole  £12,000  may  be  paid  to  the  surviving 
sister." 

r*^041  *The  testator  also  gave  to  John  Louis  Garos  £600,  and  "  to  Marie 
Genevieve  Garos,  his  wife,  the  sum  of  £2500  sterling,  for  her  own 
use,  and  over  which  her  husband  is  not  to  have  any  power,  he  having  lived 
abroad  for  many  years,  and  she  in  this  country,  and  no  correspondence  having 
passed  between  them  during  that  time.  Her  own  receipt  shall  be  a  sufficient 
authority  to  my  executors  for  paying  her  the  above  legacy." 

The  testator  died  on  the  8th  of  June,  1809.  His  widow  became  a  lunatic. 
The  petitioner,  Pye,  was  the  committee  under  the  commission,  and  upon  her 
death  took  out  administration  to  her,  and  administration  de  bonis  uon  to  the 
testator. 

The  Master's  report  stated,  from  the  examination  of  the  petitioner  Pye,  that 
Louisa  Hortensia,  Emily,  and  Julia  Garos,  were  the  three  natural  daughters 
of  the  testator  by  JMarie  Genevieve  Garos,  the  wife  of  John  Louis  Garos;  and 
that,  since  the  date  of  the  will,  Louisa  Hortensia  Garos  married  Christopher 
Dubost ;  and  the  testator  advanced  as  a  marriage  portion  for  her,  which,  by 
the  settlement,  appeared  to  have  been  received  by  Christopher  Dubost,  the 
sum  of  £8000 ;  and  it  being  contended,  that  the  said  sum  of  £3000  ought  to 
he  considered  as  an  advancement  and  in  p>art  satisfaction  of  the  legacy  of 
£4000,  and  the  whole  legacy  being  claimed  on  the  part  of  Christopher  Dubost 
and  his  wife,  (who  were  both  represented  to  be  residing  abroad,)  the  Master 
did  not  allow  the  claim. 

As  to  the  legacy  of  £2500  to  Marie  Genevieve  Garos,  the  report  stated, 
from  the  same  examination,  that  since  the  date  and  execution  of  the  will  the 
testator  caused  an  annuity  to  be  purchased  in  France,  to  which  country  she 
had  retired  for  her  life,  and  laid  out  in  such  purchase  £1500;  and,  it  being 
contended  by  the  petitioner,  Pye,  that  the  said  sum  of  £1500  ought  to  be  de- 
ducted from  the  legacy  of  £2500,  as  heing  an  advancement  and  in  part  satis- 
faction, and  the  whole  legacy  being  claimed  by  the  legatee,  then  resident 
abroad,  the  Master  had  not  allowed  such  claim,  but  left  it  open  to  the  party 
to  prosecute,  when  in  a  situation  to  do  so. 


EX     PARTE     PYE.  55' 


*By  a  farther  report  the  Master  found,  as  to  the  French  annuity,  |.-^oak-| 
that,  by  a  letter  written  by  the  testator  to  Christopher  Dubost  in  Paris,  ■- 
on  the  25th  of  November,  1807,  the  testator  authorized  him  to  purchase  in 
France  an  annuity  of  £100,  for  the  benefit  of  the  said  Marie  Genevieve  Garos 
for  her  life,  and  to  draw  on  him  for  £1500  on  account  of  such  purchase.  And 
under  that  authority  Dubost  purchased  an  annuity  of  that  value;  but  that,  as 
she  was  married  at  the  time,  and  also  deranged,  the  annuity  was  purchased  in 
the  name  of  the  testator;  and  the  testator  sent  to  Dubost,  by  his  desire,  a  power 
of  attorney  authorizing  him  to  transfer  to  Marie  Genevieve  Garos  the  said 
annuity,  dated  the  10th  of  June,  1808. 

The  report  farther  found,  upon  the  affidavit  of  Dubost  and  the  copy  of  the 
deed,  that  the  first  intimation  he  received  of  the  death  of  the  testator,  who 
died  in  June,  1809,  was  in  November,  1809  ;  and  that,  in  ignorance  of  such 
death,  Dubost,  on  the  21st  of  October,  1809,  exercised  the  power  vested  in 
him,  by  executing  to  Marie  Genevieve  Garos,  (her  late  husband  being  then 
dead,  and  she  of  sound  mind,)  a  deed  of  gift  of  the  said  annuity;  and  the 
Master  found,  that,  by  the  law  of  France,^  if  an  attorney  be  ignorant  of  the 
death  of  the  party  who  has  given  the  power  of  attorney,  whatever  he  has  done, 
while  ignorant  of  such  death,  is  valid.  The  Master  therefore  stated  his  opinion, 
that  the  annuity  was  no  part  of  the  personal  estate  of  William  Mowbray. 

The  first  petition  prayed,  that  so  much  of  the  report  as  certifies  the  French 
annuity  to  be  no  part  of  the  testator's  personal  estate  may  be  set  aside;  and 
that  it  may  be  declared,  that  the  said  annuity  is  part  of  his  personal  estate. 

The  other  petition,  by  Dubost  and  his  wife,  prayed  a  transfer  of  Three  per 
Cent.  Bank  Annuities  in  satisfaction  of  £1000  of  the  legacy;  and  that  so 
much  of  the  Bank  Annuities  as  will  be  sufficient  to  raise  3177^.  3s.  QcL,  the 
residue  of  the  said  legacy  and  interest,  may  be  sold,  &c. 

An  affidavit  was  offered  by  Dubost,  that,  upon  the  *treaty  of  mar-  ^o^^-, 
riage,  the  testator  assured  him,  that,  independent  of  the  £3000,  he  L  J 
had  already  bequeathed  her  £4000,  and  Dubost  might  depend  upon  his  not 
altering  it.  A  letter  was  also  produced  to  the  testator  from  Dubost,  previous 
to  the  marriage,  stating,  that  he  would  not  believe  the  information  he  had 
received,  that  the  testator,  being  asked  whether  he  would  remember  the  young 
ladies  in  his  will,  answered,  "You  cannot  expect  that;"  that  he  had  said  to 
Mrs.  Dubost,  that  he  did  not  see  why  there  should  be  a  difference  between 
the  sisters ;  and,  asking,  if,  according  to  the  custom  in  France,  he  would  give, 
besides  the  portion,  £100  to  be  laid  out  in  jewels,  &c.  This  letter  was  found 
after  the  testator's  death  among  his  papers. 

Sir  Arthur  Piggott,  Mr.  Richards,  Mr.  Winfield,  'Mr.  Home,  and  Mr.  Wear, 
for  different  parties,  in  support  of  the  first  petition. 

1  By  the  Code  Napoleon,  Art.  2003,  "  Le  mandat  finit  par  la  mort  naturelle 
soit  du  mandant,  soit  du  mandataire."     But  an  exception  is  introduced  in  the  following 
article,  Art.  2008,  "Si  le  mandataire  ignore  la  more  du  mandant,     .      .      .     ce  qu'il  a 
fait  dans  cette  ignorance  est  valide." 


556  SATISFACTION.  —  ADEMPTION. 

The  Frencli  annuity  being  pm-cbased  in  the  testator's  name,  and  no  third 
person  interposed  as  a  trustee,  the  interest  could  not  be  transferred  from  him 
without  certain  acts,  •which  were  not  done  at  the  time  of  his  death.  It  was 
therefore  competent  to  him  during  his  life  to  change  his  purpose,  and  to  make 
some  other  provision  for  this  lady  by  funds  in  this  country,  conceiving,  per- 
haps, that  she  might  return  here.  The  authority  given  to  purchase  this 
annuity  could  not  have  been  enforced  against  him  during  his  life  by  a  person 
claiming  as  a  volunteer;  nor  can  it  be  established  against  his  estate  after  his 
death,  the  act  which  would  have  given  the  benefit  of  it  against  the  personal 
representative  not  having  been  completed.  Where  a  question  is  to  be  decided 
by  a  foreign  law,  the  first  step  is  an  inquiry  by  the  Master  to  ascertain  what 
is  the  law  of  that  country. 

With  regard  to  the  other  petition,  and  the  objection  to  the  letter  oifercd  as 
evidence,  the  circumstances  resemble  those  of  Sliudal  v.  Jd-i/U,'^  before  Lord 
Hardwicke,  Powel  v.  Cleaver,"^  before  Lord  Thurlow,  and  Trimmer  v.  Bayne,^ 
before  your  Lordship ;  and  the  conclusion  is,  *that  the  evidence  is 
L  J  admissible.  Lord  Ilardwicke's  opinion  was,  that  this  rule,  as  to  satis- 
faction, is  not  confined  to  the  case  of  a  parent.  It  is  true  it  does  not  apply 
to  a  mere  stranger,  standing  in  no  relation,  natural  or  civil,  either  as  a  legiti- 
mate, adopted,  or  natural  child,  but  it  applies  to  any  person  standing  in  loco 
parentis  equally  as  to  the  parent.  The  presumption  was  repelled  in  Shudul 
V.  Jrky/l,  by  the  evidence,  which  was  held  to  be  admissible,  and  proved  that 
the  testator  had  no  intention  of  limiting  his  bounty  to  the  portion  he  had 
given  on  the  plaintiff's  marriage ;  declaring  that  he  would  leave  her  something 
by  his  will,  but  would  not  be  put  under  any  obligation  to  do  it ;  the  evidence 
therefore  contradicting  the  supposed  intention  to  substitute  the  portion  for 
the  legacy. 

The  case  of  Powel  y.  Cleaver,*^  certainly  had  strong  circumstances,  admitting 
argument ;  and  Lord  Thurlow,  finding  the  legatee  a  mere  stranger  to  the  tes- 
tator, who,  though  undoubtedly  he  provided  a  portion  for  her  on  marriage, 
stood  in  no  relation  to  her,  and  could  not  be  considered  as  having  taken  upon 
him  the  character  of  parent,  determined  against  her  claim  of  a  double  pro- 
vision. 

Trimmer  v.  Bayne^  was  the  case  of  a  provision  for  a  natural  daughter, 
which  has  been  considered  as  a  solid  distinction ;  and  your  Lordship  decided 
that  case  with  great  attention,  and  upon  a  full  review  of  the  authorities.  Upon 
the  evidence,  it  is  impossible  to  deny  the  intention  to  make  a  provision  at  least 
for  an  adopted  child,  whom  the  testator  had  educated ;  and  that  there  was  an 
ulterior  purpose  in  his  mind.  This  is  the  same  species  of  case  as  Shudal  v. 
Jckyll  f  in  which  the  provision  by  the  will,  accompanied  with  the  declared 
intention  of  the  testator  to  do  something  more  for  his  niece,  justified  Lord 
Hardwicke's  decision ;  and 'the  same  principle  that  governed  that  case  and 

1  2  Atk.  51 G.  2  2  Bro.  C.  C.  499.  s  7  Ves.  508. 

<  2  liro.  C.  C.  499.  "  T  Ves.  508.  6  2  Atk.  516. 


EX     PARTE     PYE.  557 


Trimmer  v.  Bayne,  though  with  a  different  effect,  must  be  applied  to  this  : 
the  case  of  a  person,  treated  by  the  testator  as  a  child,  adopted  and  educated 
by  him,  standing  upon  the  evidence  of  this  letter  in  loco  parentis  and  filise, 
having,  from  the  infancy  of  these  children,  *acted  as  their  parent,  and 
therefore  as  much  within  the  rule  as  the  actual  relation  of  parent  and  ["^^^^J 
child ;  and  the  circumstance,  that  the  legacy  is  given  over  upon  the  contin- 
gency from  one  child  to  another,  cannot  prevent  its  application.  The  letter 
of  Dubost,  which  is  clearly  evidence,  is  decisive.  It  is  the  letter  of  a  person 
treating  upon  the  subject  of  his  proposed  marriage  with  the  testator,  as  her 
parent,  and  also  as  having  made  a  provision  for  her  by  his  will.  The  circum- 
stance, that  this  letter,  which  came  out  of  the  testator's  papers  after  his  death, 
had  been  kept  by  him,  the  settlement  following  immediately  upon  it,  is  remark- 
able. The  Master's  report,  therefore,  is  right;  and  the  second  petition  must 
be  dismissed. 

Sir  Samuel  RomiJI)/  and  Mr.  Bell/m  support  of  the  second  petition,  (refer- 
ring, in  opposition  to  the  other  petition,  to  the  present  law  of  France,  declarino-^ 
that  if  the  mandatory  is  unacquainted  with  the  death  of  the  mandant,  or  any 
other  cause,  which  put  an  end  to  the  mandate,  whatever  he  has  done  while  he 
was  so  unacquainted,  is  valid.) 

It  cannot  be  disputed,  that  the  advance  of  a  portion  by  a  parent  on  the  mar- 
riage of  his  child,  is  a  satisfaction  of  a  legacy,  either  the  whole  or  part;  and 
that,  if  the  testator,  though  not  the  natural  or  legitimate  father,  has  placed 
himself  in  loco  parentis,  the  same  consequence  will  follow.  The  difference 
consists  in  the  application  of  that  principle;  and  the  question  is,  whether  the 
testator  gave  this  legacy  as  to  his  child ;  which  must  be  made  out,  otherwise 
the  presumption  of  satisfaction  cannot  arise.  In  no  case  has  the  Court  pro- 
ceeded on  any  other  supposition  than  that  the  legacy  was  given  to  the  leoatee 
as  a  child.  If  a  legacy  was  bequeathed  to  a  child,  with  whom  the  testator  had 
then  no  connection,  but  afterwards  married  the  mother,  took  that  child  as  his 
adopted  child,  and  gave  it  a  portion  as  such,  the  legacy  not  being  given  in  the 
same  character,  the  portion  would  not  be  a  satisfaction ;  the  clear  conclusion 
from  all  the  authorities  being,  that  they  must  be  given  in  the  same  character. 

*In  this  case  the  legacy  clearly  is  not  given  to  the  legatee  as  the  r>^qAQ-i 
child  of  the  testator ;  and  no  evidence  can  be  received  to  show  that  it  ^ 
was  given  to  her  in  that  character,  the  will  containing  an  express  statement, 
by  way  of  description  certainly,  that  she  is  the  child  of  another  man.  The 
objection  to  the  letter  as  evidence  is,  that  it  is  produced  directly  to  contradict 
the  will,  which  declares  her  to  be  the  daughter  of  another^  If,  however,  it 
can  be  received,  the  fair  inference  is,  that  she  was  to  have  both  the  legacy  and 
the  portion.  It  is  a  letter  from  the  proposed  husband,  suggesting  to  the  tes- 
tator, that  he  ought,  besides  the  portion,  to  give  this  lady  a  legacy,  and  repre- 
senting, that  he  could  not  believe,  as  it  was  said,  that  he  intended  the  contrary. 
The  testator  leaves  the  legacy  standing,  keeping  the  letter,  which  must  have 
drawn  to  his  attention,  that,  besides  the  portion,  he  had  given  her  a  legacy. 
The  fair  inference  is,  that  the  letter  had  its  effect,  inducing  him   to  make  no 


558  SATISFACTION.  —  ADEMPTION. 


alteration  in  the  will,  but  to  leave  the  legacy  standing.  How  is  that  to  be 
otherwise  accounted  for?  Can  it  be  conceived  that  this  testator  was  acquainted 
with  these  decisions,  and  thence  collected,  that,  upon  this  doctrine  of  satis- 
faction, it  was  unnecessary  for  him  to  make  the  alteration  ?  The  case  of  Grave 
V.  Lord  Salishurij,^  the  decision  certainly  turning  upon  particular  circum- 
stances, is  material  as  showing  Lord  Thurlow's  reluctance  to  extend  this  rule, 
of  which  he  evidently  disapproved. 

Lord  Chancellor  Eldon. — I  recollect  that  Lord  Thurlow,  in  that  case, 
though  the  decision  did  not  turn  upon  it,  remarked,  that,  as  the  law  will  not 
acknowledge  the  relation  of  a  natural  child,  the  doctrine  of  this  Court,  on 
whatever  principle  founded,  is,  that  if  a  portion  is  given  to  a  child,  by  will,  or 
a  gift  so  constituted  as  to  acknowledge  the  legal  relation,  and  afterwards  an 
advancement  is  made  on  marriage,  that  is  prima  facie  an  ademption  of  the 
whole,  or  pro  tanto ;  but  if  the  legacy  is  given  to  a  person  standing  in  the 
relation  of  a  natural  child  to  the  testator,  and  he  afterwards  gives  that  child  a 
sum  of  *mouey  on  marriage,  the  law  does  not  admit  the  conclusion 
[  ^^^J  prima  facie  that  the  testator,  at  the  time  of  making  the  will,  recognized 
that  relation.  The  natural  child,  therefore,  is  in  so  much  better  a  situation, 
that  in  his  case,  the  advancement  is  not  prima  facie  an  ademption,  as  it  is  in 
the  case  of  a  legitimate  child  ;  the  effect  of  which  is,  that  the  presumption  is 
to  be  formed  consistently  with  the  notion,  that  the  testator  has  less  affection 
for  his  legitimate  child  than  even  for  a  stranger,  as  Lord  Thurlow  used  to  ex- 
press it. 

His  Lordship  also  made  another  observation,  of  great  weight,  that  ought  to 
check  any  disposition  to  carry  this  further ;  that,  having  raised  the  presump- 
tion from  the  fact,  you  beat  it  down  by  declarations,  which  from  the  very  na- 
ture of  mankind,  deserve  little  credit,  viz.  what  a  man  has  done  or  will  do,  by 
his  will ;  how  much  shall  stand,  and  how  much  shall  not :  declarations  gene- 
rally intended  to  mislead ;  but  the  prima  facie  presumption  is  established  be- 
yond controversy. 

The  question  is  certainly  of  great  consequence,  whether  this  class  of  cases 
does  or  does  not  require  evidence  that  at  the  time  the  legacy  was  constituted, 
the  legatee,  not  standing  in  the  relation  of  a  child  to  the  testator,  was  regarded 
by  him  quasi  in  that  relation,  conceiving  the  purpose  of  placing  himself  in 
loco  parentis;  and  if  it  is  necessary  that  such  a  relation  must  then  exist,  it  is 
very  difficult  to  conclude  that  this  particular  case  falls  under  that  description. 
His  purpose,  whatever  was  his  opinion  with  regard  to  these  children,  seems  to 
have  been,  that  no  one  should  consider  him  as  standing  in  the  place  of 
father.  His  expressions  seem  particularly  selected  with  the  view  to  avoid  the 
description  of  a  portion,  and  to  denote,  that,  not  he,  but  some  other  person, 
stood  in  the  situation  of  parent. 

In  SJmdull  V.  Jckijli;'  and  the  subsequent  case  before  Lord  Thurlow,  upon 

1  1  Bro.  C.  C.  425.  «  2  Atk.  516. 


EX     PARTE     PYE.  559 


the  same  principle,  holding,  that,  by  such  a  declaration,  that  he  might  leave 
something,  but  would  not  specify  what,  or  be  bound,  the  legacy  could  not  be 
partly  cut  down,  a  natural  interpretation  was,  that  *taking  £'500  from 
the  legacy,  and  leaving  £500,  he  did  leave  something  more  beyond  V^^^^J 
what  he  had  advanced ;  but  Lord  Hardwicke  correctly  said  he  had  no  means 
of  collecting  what  was  that  something  more;  and  the  will  giving  £1000  was 
better  evidence  than  any  conjecture  he  could  form.  If  this  letter  can  be  con- 
sidered as  fair  evidence  that  he  did  not  mean  to  disturb  the  will,  and  that  this 
fortune,  as  it  is  called  in  the  letter,  should  be  an  ademption  of  that  fortune, 
the  doctrine  of  Shudal  v.  JcJci/lJ,  must  be  applied  to  this  case.  This  is  a  very 
important  question ;  and  I  wish  to  read  the  case,  particularly  Trimmer  v. 
Bayne,^  upon  which  occasion  I  gave  the  subject  considerable  attention. 

The  other  question  involves,  not  only  the  construction  of  the  French  law, 
and  the  point,  whether  that  has  been  sufficiently  investigated,  but  farther, 
whether  the  power  of  attorney  amounts  here  to  a  declaration  of  trust.  It  is 
clear  that  this  Court  will  not  assist  a  volunteer  ;  yet  if  the  act  is  completed, 
though  voluntary,  the  Court  xvill  act  upon  it.  It  has  been  decided,  that  upon 
an  agreement  to  transfer  stock,  this  Court  loill  not  interpose  ;  hut  if  the  party 
had  declared  himself  to  he  the  trustee  of  that  stock,  it  becomes  the  property  of 
the  cestui  que  trust  loithout  more  ;  and  the  Court  will  act  upon  it? 

Lord  Chancellor  Eldon,  (June  13th.)— These  petitions  call  for  the 
decision  of  points  of  more  importance  and  difficulty  than  I  should  wish  to  de- 
cide in  this  way,  if  the  case  was  not  pressed  upon  the  Court. 

With  regard  to  the  French  annuity,  the  Master  has  stated  his  opinion  as  to 
the  French  law,  perhaps  without  sufficient  authority  or  sufficient  inquiry  into 
the  effect  of  it  as  applicable  to  the  precise  circumstances  of  this  case  ;  but  it  is 
not  necessary  to  pursue  that ;  as,  upon  the  documents^  before  me,  it  does 
appear  that,  though  in  one  sense  this  may  be  represented  as  the  testator's 
personal  estate,  yet  he  has  committed  to  writing  what  seems  *to  me  a  r^qi.^-i 
sufficient  declaration  that  he  held  this  part  cf  the  estate  in  trust  for  ^  "-' 
the  annuitant. 

The  other  question  is  one  of  great  difficulty;  whether  a  sum  of  money, 
advanced  upon  the  marriage  of  one  of  these  young  ladies,  when  a  settlement 
was  executed,  is  to  be  taken  to  be  a  satisfaction  of  a  legacy,  not  given  upon 
the  face  of  the  will  as  a  portion,  not  given  to  a  person  stated  upon  the  will  to 
be  an  adopted  child  of  the  testator,  or  described  merely  by  name,  but  given  to 
an  individual,  a  stranger,  described  in  the  will  as  the  child  of  another  person, 
who  is  designated  as  the  father  of  that  child.  It  not  only  does  not  appear 
that  the  testator  represented  himself  as  in  loco  parentis,  but  he  has  designated 
another  individual  as  being  the  parent;   and,  therefore,  according  to  Lord 

1  7  Yes.  508.  2  See  Ellison  v.  Ellison,  vol.  1,  p.  199,  and  note. 

3  See  2  Spcnce,  Eq.  Jur.  53,  n.  (rf),  where  other  documents  not  set  forth  by  the  re- 
porter, and  which  may  materially  have  influenced  the  mind  of  Lord  Eldon  in  coming  to 
this  conclusion,  arc  given. 


]Q0  SATISFACTION. — ADEMPTION. 


Tburlow's  opinion,  in .  Grave  v.  Lord  Salishurj/,^  the  testator  Las  expressed 
himself  in  terms  anxiously  calculated  to  conceal  the  fact,  that  he  was  the  re- 
puted father  of  that  child,  if  he  was  so. 

Without  going  through  all  the  cases  that  were  cited,  and  those  referred  to 
in  them,  having  compared  the  case  in  Atkyns^  with  manuscript  notes  of 
that  case,  and  looked  into  some  other  cases,  one  in  Ambler,'  and  some  earlier, 
I  may  state,  as  the  unquestionable  doctrine  of  the  Court,  that  where  a  parent 
gives  a  legacy  to  a  child,  not  stating  the  purpose  with  reference  to  which  he 
gives  it,  the  Court  understands  him  as  giving  a  portion ;  and  by  a  sort  of 
artificial  rule,  in  the  application  of  which  legitimate  children  have  been  very 
harshly  treated,  upon  an  artificial  notion  that  the  father  is  paying  a  debt  of 
nature,  and  a  sort  of  feeling  upon  what  is  called  a  leaning  against  double  por- 
tions, if  the  father  afterwards  advances  a  portion  on  the  marriage  of  that 
child,  though  of  less  amount,  it  is  a  satisfaction  of  the  whole,  or  in  part;  and 
in  some  cases  it  has  gone  a  length,  consistent  with  the  principle,  but  showing 
the  fallacy  of  much  of  the  reasoning,  that  the  portion,  though  much  less  than 
the  legacy,  has  been  held  a  satisfaction  in  some  instances  upon  this  ground, 
that  the  father  owing  what  is  called  a  debt  of  nature,  is  the  judge  of  that  provi- 
r*qi  q-i  sion  by  which  he  means  to  satisfy  it ;  and  *though  at  the  time  of  making 
'-  ^  the  will,  he  thought  he  could  not  discharge  that  debt  with  less  than 
£10,000,  yet  by  a  change  of  his  circumstances,  and  of  his  sentiments  upon 
that  moral  obligation,  it  may  be  satisfied  by  the  advance  of  a  portion  of  £5000.* 

The  Court  seems,  in  the  older  cases,  to  have  met  with  some  difficulty  in 
determining  whether  this  rule  should  be  confined  to  those  who  stood  in  the 
actual  relation  of  parent  and  child  ;  and  it  has  accordingly  been  urged  in  argu- 
ment, but  not  supported  by  decision,  except  where  accounted  for  by  evidence 
of  declarations,  that  the  Court  have  said  they  did  not  mean  to  confine  this 
doctrine  to  persons  standing  in  that  actual  relation  ;  but,  perhaps,  it  might 
apply  to  a  person  placing  himself  in  loco  parentis,  undertaking  the  care. of  an 
orphan.  But  what  is  to  be  the  evidence  of  that,  whether  written  evidence  in 
the  will  and  settlement,  or  the  conduct  observed  at  the  marriage,  or  to  be  de- 
rived from  mere  declarations,  is  left  so  much  afloat,  that  there  is  considerable 
difficulty  in  making  a  judicial  decision  upon  it. 

In  Grave  v.  Lord  Salislury,^  the  first  case  before  Lord  Thurlow,  Lord 
Salisbury  had  several  natural  children,  to  whom  he  had  given  legacies  by  his  will, 
making  afterwards  a  provision  for  them  during  his  life,  not  ejusdera  generis ; 
fiving  the  living  of  Hatfield  to  one  ;  a  farm  and  stock  to  another;  upon  which 
the  question  arose.  It  was  contended  that  this  was  a  satisfaction ;  that  he 
intended  by  the  legacy  to  make  a  provision,  or,  in  other  words,  to  discharge 

1  1  Bro.  C.  C.  425.  ^  Sluulal  v.  Jckyll,  2  Atk.  516. 

3  Watson  V.  The  Earl  of  Lincolrt,  Amb.  325. 

*  See,  however,  Pyra  v.  Lockyer,  5  My.  &  Cr.  29,  and  Kirk  v.  Eddowes,  3  Hare,  50D, 
which  establish  that  a  portion  of  less  amount  than  the  provision  by  will  is  a  satisfaction 
pro  tanto  only,  overruling  therefore,  the  cases  alluded  to  by  Lord  Eldon. 

5  1  Bro.  C.  C.  425. 


EX     PARTE     PYE.  561 


the  obligation  he  owed  to  that  child  ;  and  he  had  the  same  intention,  advancing 
the  portion,  and  the  farm  and  stock.  Lord  Ihurlow  felt  the  extreme  hard- 
ship, as  it  is  evidently,  that,  in  the  case  of  children,  whose  relation,  as  such, 
the  law  recognizes,  the  doctrine  of  presumption  is,  that  a  subsequent  advance- 
ment is  a  satisfaction  of  a  legacy  to  such  a  child  ;  but,  as  the  law  does  not  re- 
cognize the  relation  between  the  putative  father  and  illegitimate  child,  as 
imposing  this  debt  of  nature,  the  father  in  that  case  stands  as  a  stranger;  and 
no  such  presumption  arises,  in  that  case,  where  the  *subsequent  r*qin 
advance  is  not  proved  to  have  been  for  the  very  purpose  of  satisfying 
the  legacy,  and  therefore  the  legatee  entitled  to  both.  Lord  Thurlow  directed 
a  reference  to  the  master  to  inquire  into  the  circumstances,  who  did  not  re- 
port the  relation  which  the  testator  had  to  those  children;  and  his  Lordship, 
being  pressed  to  send  it  back  on  that  account,  refused  to  do  so;  observing, 
that  the  object  might  have  been  to  conceal  the  circumstance  of  that  relation  ; 
and,  therefore,  the  Court  would  not  make  the  inquiry;  but  without  deciding 
what  would  have  been  the  case  if  that  relation  appeared,  it  was  enough  that 
it  stood  as  the  case  of  a  stranger ;  and  therefore  the  other  provision  was  not  a 
satisfaction. 

In  the  subsequent  case  of  Poiccl  v.  Cleaver,'^  where  the  provision  made  was 
described  as  a  portion,  Lord  Thurlow  stated  expressly,  that,  if  the  legacy  is 
given,  not  as  a  portion,  by  a  stranger,  who  advances  money  on  the  marriage 
of  the  legatee,  denominating  that  advance  a  portion,  that  denomination  will 
not  have  the  same  effect  in  the  case  of  a  stranger,  as  it  would  in  the  case  of 
parent  and  child ;  and  Lord  Thurlow  asserts  there  there  is  no  authority  con- 
tradicting that. 

If  that  is  right,  it  comes  to  this  :  that,  where  a  father  gives  a  legacy  to  a 
child,  the  legacy  coming  from  a  father  to  a  child  must  be  understood  as  a 
portion,  though  it  is  not  so  described  in  the  will ;  and,  afterwards  advancing  a 
portion  for  that  child,  though  there  may  be  slight  circumstances  of  diiference 
between  that  advance  and  the  portion,  and  a  difference  in  amount,  yet  the 
father  will  be  intended  to  have  the  same  purpose  in  each  instance ;  and  the 
advance  is  therefore  an  ademption  of  the  legacy  ;^  but  a  stranger,  giving  a 
legacy,  is  understood  as  giving  a  bounty,  not  as  paying  a  debt :  he  must, 
therefore,  be  proved  to  mean  it  as  a  portion,  or  provision,  either  upon  the  face 
of  the  will,  or,  if  it  may  be,  and  it  seems  that  it  may,  by  evidence  applying 
directly  to  the  gift  proposed  by  that  will ;  and,  recollecting  how  artificial  the 
rules  are,  where  a  person  has  educated  a  child  through  life,  considering 
himself  as  standing  in  the  relation  of  putative  father  to  *that  child,  r>Kq-|K-i 
having  a  father  acknowledged,  describing  that  child  as  the  child  of  a  -^ 

mother  named,  and  a  father  named,  and  also  making  a  provision  for  that 
father  and  mother,  it  would  be  too  much,  upoq,  such  a  will  to  say,  this  is  the 

1  2Bro.  C.  C.  499. 

2  But  pro  tiinto  only  if  of  less  amount:  Pjm  v.  Lockver,  5  M.  &  C.  29;  Kirk  v.  Ed- 
doT\res,  3  Hare,  509. 

VOL.  II. — 36 


562  SATISFACTION.  — ADEMPTION. 

case  of  a  person  meaning  to  pay,  not  what  the  Court  calls  a  debt  of  nature, 
but  a  debt  he  meant  to  contract:  in  other  words,  meaning  to  put  himself  in 
loco  parentis,^  in  the  situation  of  the  person  described  as  the  lawful  father 
of  that  child. 

That  brings  the  question  to  this — whether  this  advance  of  a  portion  of 
£3000  is  an  ademption  of  the  legacy  between  strangers,  on  the  ground  that 
this  subsequent  advance  is  treated  as  a  portion  or  fortune  ?  and  whether  the 
testator,  having  given  that  legacy  of  £4000,  and  afterwards  giving  to  that 
legatee  a  portion  on  marriage,  the  mere  circumstance  of  giving  that  as  a  por- 
tion or  fortune  is  to  be  taken  as  evidence  that,  when  the  will  was  made,  it  was 
meant  as  paying  a  debt  of  nature  ?  or  whether  it  was  not  to  be  understood,  as 
in  the  first  instance  giving  a  bounty,  and  in  tlie  other  making  an  addition  to 
that  bounty  ?  In  this  case,  as  in  JShudal  v.  Jeki/U,  more  was  intended  to  be 
given,  but  in  the  case  of  a  stranger  no  authority  says  the  advance  of  a  less 
sum  shall  be  an  ademption  of  the  whole.  This  letter,  if  it  is  to  be  admitted 
in  evidence,  shows  how  little  such  evidence  can  be  trusted,  as  no  one  would 
have  supposed,  upon  the  correspondence,  that  the  testator  had  such  a  will  in 
his  desk.  Upon  the  authority  of  Poicel  v.  Cleaver,  unless  you  can  show  that, 
at  the  time  of  making  the  will,  the  testator  meant  to  give  a  portion  as  a  parent, 
or  as  standing  in  loco  parentis,  and  meant  to  satisfy  that,  in  the  whole  or  in 
part,  by  the  subsequent  advance,  the  Court  is  not  authorized  by  the  artificial 
rules  of  equity  to  hold  it  as  a  satisfaction. 

I  am  not  much  impressed  by  the  objection,  that  he  had  not  altered  his  will. 
The  answer  is,  that  the  subsequent  advance  operates  a  revocation,  and,  there- 
fore, actual  revocation  was  unnecessary;  but  it  is  too  much  to  say,  upon  such 
circumstances  as  are  before  me,  that  this  advance  of  £8000  is  an  ademption 
r*Qin  ^^  *^^^  legacy  of  £4000  and  the  ^contingent  interest;  and  though  I 
^  believe  I  am  disappointing  the  actual  intention,  and  that  this  lady 

will  get  more  than  was  intended,  I  am  bound  by  the  rule  of  the  Court  to  say, 
that  this  is  not  a  satisfaction. 

^  Under  this  judgment  the  order  was  pronounced,  dismissing  the  first  peti- 
tion, and  directing  a  transfer  and  sale  of  the  Bank  Annuities  according  to  the 
prayer  of  the  other;  upon  which  it  was  contended,  that  this  should  be  con- 
sidered as  an  appropriation  of  the  stock  to  this  legacy  at  the  date  of  the  Mas- 
ter's report;  and  the  funds  having  since  fallen,  the  legatee  was  entitled  only 
to  so  much  stock  as  would  at  that  time  have  produced  what  remained  due  on 
account  of  the  legacy. 

The  Lord  Chancellor  said  : — The  broad  principle  of  the  Court  is,  that 
no  attention  whatever  is  paid  to  the  rise  or  fall  of  the  stock;  and  upon  that 

1  This  definition  of  a  person  putting  himself  in  loco  parentis  is  approved  of  and  adopted 
by  Lord  Cottenham,  in  Fowys  v.  Mansfield,  3  My.  &  Cr.  3GG,  367. 
^  June  28lh,  1811. 


SIR     JOHN     TALBOTT     V.     DUKE     OF     SHREWSBURY.         563 

ground  it  is  considered  equal,  whether  the  appropriation  is  in  one  way  or 
another.  The  party  takes  the  rise  or  fall  as  it  happens ;  and  therefore  the 
petitioners  are  entitled  to  have  the  sum  reported  due  to  them  now  raised. 


*SIR  JOHN  TALBOTT  v.  THE  DUKE  OF        [*317] 
SHREWSBURY. 

DE  TERM.  S.  MICH.  1714. 
REPORTED  PREC.  CH.  394. 

Satisfaction  of  a  Debt  by  a  Legacy. — A  dehtor,  without  taTcing  notice  of 
the  deht,  bequeaths  a  sum  as  great  as,  or  greater  than  the  debt,  to  his  credi- 
tor :  this  shall  be  a  satisfaction  j  secus,  if  it  were  bequeathed  on  a  contin- 
gency, or  if  it  were  less  than  the  debt. 

In  this  case  it  was  said  by  Mr.  Vernon,  and  agreed  to  by  Sir  J.  Trevor, 
M.  R.,  that  if  one,  being  indebted  to  another  in  a  sum  of  money,  does,  by  his 
will,  give  him  a  sum  of  money  as  great  as,  or  greater  than,  the  debt,  without 
taking  any  notice  at  all  of  the  debt,  that  this  shall,  nevertheless,  be  in  satis- 
faction of  the  debt,  so  as  that  he  shall  not  have  both  the  debt  and  the  leo-acy  • 
but  if  such  a  debt  were  given  upon  a  contingency,  which,  if  it  should  not 
happen,  the  legacy  would  not  take  place,  in  that  case,  though  the  contingency 
does  actually  happen,  and  the  legacy  thereby  became  due,  yet  it  shall  not  go 
in  satisfaction  of  the  debt ;  because  a  debt  which  is  certain,  shall  not  be  merged 
or  lost  by  an  uncertain  and  contingent  recompense;  for  whatever  is  to  be  a 
satisfaction  of  a  debt,  ought  to  be  so  in  its  creation,  and  at  the  very  time  it  is 
given,  which  such  contingent  provision  is  not;  and  cited  the  case  of  one 
Pollexfen  to  be  so  adjudged  by  the  Lord  Harcourt,  and  affirmed  on  an  appeal 
in  the  House  of  Lords.  And  as  it  is  in  the  case  of  a  will,  so  it  will  be  like- 
wise if  the  provision  were  by  a  deed ;  if  the  provision  be  absolute  and  certain, 
it  shall  go  in  satisfaction  of  the  debt ;  but  if  it  be  uncertain  and  contingent,  it 
can  be  no  satisfaction,  because  it  could  not  be  so  in  its  creation,  and  the  hap- 
pening of  the  contingency  afterwards  will  not  alter  the  nature  of  it. 


564  SATISFACTION. — ADEMPTION. 


[*318]  *CHANCEY'S  CASE.^ 

DE  TERM.  S.  HIL.  1717.— TRIN.  1725. 
REPORTED  1  P.  WMS.  408. 

Satisfaction  of  a  Debt  by  a  Legacy.] — Although  it  is  a  general  rule, 
that  if  a  legacy  from  a  debtor  to  his  creditor  be  equal  to  or  greater  than 
the  debt,  it  will  be  presrtnied  to  be  a  satisfaction  of  it,  slight  evidence  of  the 
intention  will  take  the  case  out  of  the  rule.  Thus,  where  one  being  indebted 
to  his  servant,  for  wages,  in  £100,  had  given  her  a  bond  for  that  sum,  as 
due  for  vjages,  and  afterwards,  by  loill,  gave  her  £500  for  her  long  and 
faithful  services,  and  directed  that  all  his  debts  and  legacies  should  be  paid, 
it  was  held,  that  the  legacy  was  not  a  satisfaction  for  the  debt  due  on  the 
bond. 

One  being  indebted  for  wages  to  a  maid-servant,  wbo  had  lived  witb  him  a 
considerable  time,  gave  her  a  bond  for  £100,  and  in  the  condition  of  the  bond, 
it  appeared  to  be /or  wages.  Afterwards,  the  testator  by  his  will,  among  other 
thino's,  gave  a  legacy  of  £500  to  his  maid-servant;  and  it  was  mentioned  in 
the  will  to  be  given  to  her  for  her  long  and  faithful  services  ;  [and  he  directed 
that  (dl  his  debts  and  legacies  should  be  paid. ^'\ 

The  maid-servant  having,  on  her  master's  death,  possessed  herself  of  divers 
goods  that  were  his,  the  plaintiff,  Chancey,  who  was  the  executor,  brought 
his  bill  against  her  for  an  account,  but  paid  her  the  £100  and  interest  secured 
to  her  by  the  bond. 

For  the  defendant  it  was  objected,  that  she  should  have  both  the  money 
due  on  the  bond  and  also  the  legacy ;  for  the  legacy  was  a  further  reward  for 
her  services,  and  intended  to  be  a  gift  in  toto :  whereas,  if  the  bond  were  to 
r*^lQ1  ^®  taken  out  of  it,  it  would  be  only  a  gift  of  *£400  j  and  as  to  the 
'-  old  notion,  that  the  testator  must  be  just  before  he  is  bountiful,  that 

was  nothing  where  the  testator  had  wherewithal  to  be  both  just  and  bounti- 
ful.^ 

Besides,  that  this  was  not  insisted  upon  by  the  bill ;  so  that  the  defendant 
had  no  notice  or  warning,  to  prove  that  the  testator  intended  to  give  her  the 
full  legacy  of  £500  over  and  above  the  bond :  which  proof,  though  by  parol 
only,  had  yet  been  frequently  admitted. 

Also,  for  that,  it  appeared,  the  executor  himself  had  paid  the  bond,  and 
taken  a  receipt  for  it. 

1  Chancey  v.  "U'ooton,  and  e  contra,  Reg.  Lib.  A.  fol.  449 ;  Sel.  Ch.  Ca.  44 ;  2  Eq.  Ca. 
Ab.  354,  pi.  18. 

*  See  the  judgment  of  Lord  King,  post.  '  Salk.  155. 


chancey's    case.  565 


^Sir  J.  Trevor,  M.  R. — It  is  sufficient  that  it  appears  tlie  creditor  has  a 
greater  legacy  given  her,  and  the  plaintiff,  the  executor,  prays  relief,  which  is 
as  much  as  if  he  had  prayed  that  he  might  not  be  compelled  to  pay  both  the 
debt  and  legacy. 

This  is  stronger  than  the  usual  case ;  for  the  bond  is  for  service,  and  the 
£500  legacy  is  also  for  service :  so  that  it  is  a  greater  reward  and  satisfaction 
for  the  same  thing.  Neither  is  it  material  that  the  executor  has  paid  it,  for 
he  was  bound  to  pay  the  bond  at  law,  and  his  only  method  is  to  stop  it  out  of 
the  legacy;  but,  clearly,  such  a  legacy  is  not  a  satisfaction  for  service  done  to 
the  testator^  after  the  making  of  the  will. 

'Lord  Chancellor  King  afterwards  reversed  this  decree,  upon  which 
occasion  his  Lordship  said,  he  was  not  for  breaking  in  upon  any  general  rule,* 
though  he  did  not  see  any  great  reason  why,  if  one  owed  £100  to  A.  by  bond, 
and  should  afterwards  give  him  a  legacy  of  £500,  this  legacy  must  go  in  satis- 
faction of  the  debt ;  for,  if  so,  the  whole  £500  would  not  be  given,  in  regard 
£100  of  it  would  be  paid  towards  a  just  debt,  which  the  testator  could  not 
help  paying ;  and  therefore  the  whole  £500  would  not  be  given,  against  the 
express  declaration  of  the  testator,  who  says  he  gives  the  same ;  and  though  it 
seemed  to  have  obtained  as  a  rule  that  a  man  should  be  *j\ist  before  he 
is  bountiful,  yet,  when  a  man  left  such  an  estate  and  fund  for  his  L  -•  J 
debts  and  legacies,  as  that  he  might  thereout  be  both  just  and  bountiful,  and 
especially  when  there  seemed  to  be  not  only  an  intention,  but  also  express 
words  to  that  purpose ;  in  such  case,  his  Lordship  did  not  see  but  it  would  be 
as  reasonable  that  the  whole  legacy  should  take  effect  as  a  legacy,  and  that  the 
debt  should  be  paid  besides. 

And  it  was  said  at  the  bar,  by  Mr.  Talbot,  to  have  been  a  strange  resolution, 
that  if  I  owe  a  man  £100  and  give  him  a  £100  legacy,  then  I  give  him  nothing, 
but  only  pay  him  what  I  am  bound  to  do ;  but  if  the  legacy  be  twenty  shillings 
less,  viz.  £99,  here  it  is  a  good  gift  and  legacy,  exclusive  of  the  debt. 

However,  the  Court  said,  they  were  not  by  this  resolution  overturning  the 
general  rule;  but  that  this  case  was  attended  with  particular  circumstances 
varying  it  from  the  common  case,  viz.  that  the  testator,  by  the  express  words 
of  his  will,  had  devised  ^^  that  all  his  debts  and  legacies  shoidd  be  paid  ;"  and 
this  £100  bond  being  then  a  debt,  and  the  £500  being  a  legacy,  it  was  as 
strong  as  if  he  had  directed  that  both  the  bond  and  the  legacy  should  be  paid- 
that,  when  the  testator  gave  a  bond  for  the  £100  arrcar  of  wages,  it  was  the 
same  thing  as  paying  it;  and  as,  if  he  had  actually  paid  it,  and  had  afterwards 
given  the  legacy  of  £500  the  executor  could  not  have  fetched  back  the  £100 
and  tnade  the  defendant  refund ;  so  neither  should  the  bond,  in  this  case,  be 
satisfied  by  the  bequest  of  the  legacy. 

iHil.  Term,  1717. 

2  Vide  Salk.  508  ;  2  P.  Wms.  343  ;  3  P.  Wms.  355. 
-3  Trin.  Term,  1725. 
*  See  the  rule  stated  in  Talbott  v.  Duke  of  Shrewsbury,  ante. 


566  SATISFACTION.  —  ADEMPTION. 

His  Lordship  also  observed,  that  the  executor  (the  plaintiff,  Mr.  Chancey) 
did  not  himself  take  this  £500  legacy  to  be  a  satisf\iction  for  the  bond,  as 
appeared  by  his  having  voluntarily  paid  the  £100  to  the  defendant,  and  that 
his  Lordship  was  of  the  same  opinion. 

So  the  decree  at  the  Rolls  was  reversed,  and  the  respondent  (the  maid- 
servant,) had  both  her  debt  and  legacy. 


*"  Satisfaction,"  (the  doctrine  of  which  is  discussed  in  the  cases  to 
L  "■  -■  which  this  note  is  appended,)  may  be  defined  to  be  the  donation  of  a 
thing,  with  the  intention,  either  expressed  or  implied,  that  it  is  to  be  taken 
either  wholly  or  in  part,  in  extinguishment  of  some  prior  claim  of  the  donee. 

With  regard  to  those  cases  where  the  intention  is  expressly  declared,  it  is 
unnecessary  to  say  anything;  for  it  is  clear,  that,  if  any  person  expressly 
declares  that  a  subsequent  gift  is  to  be  in  satisfaction  of  a  prior  demand,  the 
donee  cannot  claim  both.     See  Hardingham  v.  Thomas,  2  Drew.  35.3. 

Those  cases,  however,  where,  from  the  mere  fact  that  the  parties  stand  in  a 
certain  relation  to  each  other,  the  presumption  arises,  that  a  subsequent  dona- 
tion is  intended  to  be  in  satisfaction  of  a  pi'ior  claim,  are  well  worth  examining. 
They  may  be  divided  into  three  classes. 

1st.  The  satisfaction  of  legacies  by  portions,  which  is  commonly  called 
the  ademption  of  legacies  :  2nd,  the  satisfaction  of  portions  by  legacies ;  and, 
3rd,  the  satisfaction  of  debts  by  legacies.  Since,  however,  the  doctrine  of 
satisfaction  is  not  applied  in  the  same  manner  to  each  of  these  classes  of  cases, 
they  may  more  conveniently  be  considered  separately. 

1st.   As  to  the  satisfaction  or  ademption  of  a  legacy  l>y  a  portion. 

The  rule  is  well  laid  down  by  Lord  Eldon,  in  the  principal  case  of  Ex  parte 
Pi/Cy  "  that  where  a  parent  gives  a  legacy  to  a  child,  not  stating  the  purpose 
with  reference  to  which  he  gives  it,  the  Court  understands  him  as  giving  a 
portion ;  and,  by  a  sort  of  artificial  rule — upon  an  artificial  notion,  and  a 
sort  of  feeling  upon  what  is  called  a  leaning  against  double  portions — if  the 
father  afterwards  advances  a  portion  on  the  marriage  of  that  child,  though  of 
less  amount,  it  is  a  satisfaction  of  the  whole,  or  in  part."  Lord  Eldon,  how- 
ever, in  that  case,  in  accordance  with  what  was  then  the  general  opinion,  (1 
Rop.  on  Legacies,  366,  4th  edit.,)  seems  to  have  thought  that  the  gift  of  a 
portion  of  less  amount  than  a  legacy,  might  bo  a  total  ademption  of  it;  but  in 
the  very  important  case  of  Pym  v.  Lochjer,  5  My.  &  Cr.  29,  decided  by  Lord 
Cottenham,  after  an  elaborate  examination  of  all  the  authorities,  it  has  been 
determined  that  such  a  portion  would  be  merely  an  ademption  of  the  legacy 
pro  tanto.  See  also  Kirk  v.  Fddoices,  3  Hare,  509 ;  Montague  v.  Montague, 
15  Beav.  565. 

The  rule  or  presumption  against  double  portions  is  equally  applicable  in 
cases  where  a  person  has  placed  himself  in  loco  parentis :  Booker  v.  Allen,  2 
Russ.  &  My.  270;  Poioys  v.  Mansfield,  3  iVFy.  &  Cr.  359. 

And  so  strong  is  the  leaning  or  presumption  against  double  portions,  that  it 


EX     PARTE     PYE,  —  CHANCEY'S     CASE.  567 


will  not,  as  observed  by  Lord  Eldon,  in  Ex  parte  Pye,  *  Ex  parte  Du- 
loat,  be  repelled,  "though  there  maybe  slight  circumstances  of  diffe-  C*^^^] 
rence  between  the  advance  and  the  portion."  Thus,  the  presumption  will  not 
be  repelled  by  the  circumstance  of  the  portion  or  legacy  being  payable  at  diffe- 
rent times,  (Ilartopp  v.  Harfojyp,  17  Yes.  184;)  nor  by  the  circumstance  that 
the  limitations  of  the  portion  under  the  will  are  very  different  from  the  limi- 
tations in  the  settlement.  See  Trimmer  v.  Bayne,  7  Ves.  508 ;  llonck  v. 
Ilonck,  1  Ball.  &  B.  298;  Sheffield  y.  Coventry,  2  Russ.  &  My.  317;  FlaU 
V.  riatt,  3  Sim.  503;  Baiys  v.  Boucher,  3  Y.  &  C.  Exch.  Ca.  411;  Fowys 
V.  3Iansfic(d,  3  My  k  Cr.  359,  374.  In  Lord  Durham  v.  Wharton,  3  C.  & 
F.  146;  10  Bligh.  N.  S.  526,  L.  being  seised  of  real  estates,  (devised  to  him 
by  his  brother,  charged  with  £5000  for  his  daughter — afterwards  Mrs.  W., — 
the  interest  to  be  raised  for  her  maintenance,  if  L.  should  so  direct,)  by  his 
will,  in  1788  bequeathed  £10,000  to  trustees,  one  half  to  be  paid  at  the  end 
of  three  years,  and  the  other  half  at  the  end  of  six  years  after  his  death,  with  £4 
per  cent,  interest  from  his  decease,  in  trust  for  his  daughter  for  life,  and  after 
her  decease  in  trust  for  her  children,  as  she  should  appoint  by  deed  or  will, 
and,  in  default  of  appointment,  for  all  the  children  equally;  the  shares  of 
sons  to  be  vested  at  twenty-one,  of  daughters  at  twenty-one  or  marriage ;  and 
if  his  daughter  should  have  no  child,  or  her  sons  should  die  under  twenty-one, 
and  her  daughters  under  twenty-one  and  unmarried,  the  £10,000  was  to 
fall  into  the  residue  of  his  personal  estate;  and  he  declared  that  the  sum  of 
£10,000  was  over  and  above  the  £5000  devised  to  her  by  the  will  of  his  bro- 
ther. On  the  marriage  of  the  daughter,  in  1790,  L.  agreed  to  give  £15,000 
to  his  daughter  as  a  marriage  portion,  to  be  paid  to  the  intended  husband 
upon  his  securing  by  settlement,  according  to  his  covenant,  pin-money  and  a 
jointure  for  his  wife,  and  j^ortions  for  the  younger  children  of  the  marriage, 
and  interest  in  the  meantime;  and  then  declared,  that  the  £15,000  was  in  full 
satisfaction  and  discharge  of  all  and  every  sum  and  sums  of  money  which  the 
daughter  could  claim  under  her  uncle's  will.  The  settlement  was  executed, 
and  the  £15,000  paid  to  the  husband.  L.  died  in  1794.  It  was  held,  iu  the 
House  of  Lords,  reversing  the  decisions  of  Sir  L.  Shadwell,  Y.  C,  and  Lord 
Brougham,  C,  (reported  5  Sim.  297 ;  3  My.  &  K.  427,)  that  the  legacy  of 
£10,000  was  adeemed  by  the  portion  advanced  by  L.  on  the  marriage  of  his 
daughter. 

It  has  been  observed  by  Lord  St.  Leonards,  in  his  important  Treatise  on 
the  Law  of  Property,  with  reference  to  this  case,  that  there  could  be  no  fair 
doubt  of  the  intention  in  this  case  to  adeem  the  legacy  under  the 
father's  will ;  *but  the  difficulties  in  law  were  of  great  weight.  The  L  ^-^^J 
£15,000  was  paid  to  the  husband,  and,  in  truth,  was  not  settled  at  all  on  the 
children,  although,  in  consideration  of  it,  pin-money  and  a  jointure,  and  por- 
tions for  the  younger  children,  were  provided;  and  even  the  trusts  in  the  will 
of  the  £10,000  for  the  children,  and  the  trusts  in  the  settlement  to  raise  por- 
tions for  the  younger  children  were  dissimilar.  These  difficulties  were  over- 
come,  and   the   substance   of   the   case   was   regarded.       The   daughter   was 


568  SATISFACTION.  —  ADEMPTION. 


entitled  to  £5000,  and  the  father  had  hy  his  will  provided  an  additional 
£10,000;  he  therefore  intended  her  portion  to  he  £15,000.  Upon  her  uiar- 
riaj^e  he  accordingly  advanced  £15,000  for  her  portion,  declaring  it  to  be  in 
satisfaction  of  the  debt  of  £5000.  This  certainly  did  not  prevent  the  advance- 
ment from  operating  also  as  an  ademption  of  the  £10,000  legacy  under  the 
father's  will.  ''It  would  be  found  difficult,"  he  adds,  "to  reconcile  the 
decisions  on  this  head  previously  to  the  decision  in  the  Lords,  and  I  do  not 
think  that  the  latter  has  been  always  kept  in  view  by  the  Courts  since  it  was 
pronounced.  It  in,  of  course,  a  hindinfj  authority,  and,  as  the  principles  upon 
which,  it  ivas  decided  are  plai)i,  and  highly  favorahle  to  the  real  intention  in 
mch  cases,  it  ought  to  be  strictly  followed.  Having  now  a  clear  rule,  ice  ought 
not  lightly  to  depart  from  it."     Sugd.  Prop.  128. 

So  in  Kirh  v.  Eddowes,  3  Hare,  509,  it  was  held  that  the  gift  by  a  father 
of  a  promissory  note  to  his  daughter,  Mrs.  Kirk,  and  her  husband,  was  an 
ademption  pro  tanto  of  a  legacy  bequeathed  by  the  father  in  his  will,  to  his 
daughter  for  her  separate  use  for  life,  with  remainder  to  her  children,  as  she 
should  appoint,  and  in  default  of  appointment  to  them  equally;  the  Vice- 
Chancellor  \Vi<iram  observing  :  "  I  do  not  mean  to  decide  that  a  legacy  to  A. 
can  be  adeemed  by  a  mere  advance  to  another  person  than  A.  That  might  bo 
a  simple  revocation,  and  not  ademption  ;  nor  do  I  mean  to  decide,  that,  if  in 
this  case  the  bequest  had  been  made  to  IMrs.  Kirk  for  life,  remainder  to  chil- 
dren livimi  at  the  time,  and  named  in  the  will,  the  bequest  to  the  children 
could  have  been  affected  by  the  advance  in  question.  I  give  no  opinion  upon 
that  case.  But  here  I  find  a  legacy  to  Mrs.  Kirk  for  her  separate  use,  with 
remainder  to  her  children  as  a  class;  that,  I  think,  is  in  the  nature  of  a  por- 
tion to  the  daughter  herself."  See,  also,  Carver  v.  Bowles,  2  Russ.  &  My. 
301 ;   Delacour  v.  Freeman,  2  Jr.  Ch.  Rep.  633,  640. 

In  Upton  V.  Prince,  Ca.  t.  Talb.  71,  the  rule  was  held  to  apply,  although 

the  will  was  made  subsequently  to  the  advancement,  which  the  father,  at  the 

time  of  making  his  will,  must  have  forgotten,  as  the  son  had  given  him  a  re- 

ceipt  for  the  sum  advanced,  *acknowledging  it  to  be  on  account,  and 

'-  '  "       in  part  of  what  his  father  had  given,  or  should  in  and  by  his  last  will 


give  unto  him  his  son. 


It  may  be  here  mentioned,  that  a  legacy  which  has  been  adeemed  by  a  settle- 
ment or  advancement,  will  not  be  revived  or  t^et  up  by  a  codicil  made  after 
such  settlement  or  advancement,  although  it  confirms  the  will  and  all  the  be- 
quests therein  contained.  "  It  is  very  true,"  says  Lord  Cottenham,  in  Poirys 
y.Mavsfeld,  3  My.  &  Cr.  376,  "that  a  codicil,  republishing  a  will,  makes  the 
will  speak  as  from  its  own  date,  for  the  purpose  of  passing  after-purchased 
lands,  but  not  for  the  purpose  of  reviving  a  legacy  revoked,  adeemed,  or  satis- 
fied. The  codicil  can  only  act  upon  the  will  as  it  existed  at  the  time;  and, 
at  the  time,  the  legacy  revoked,  adeemed,  or  satisfied,  formed  no  part  of  it. 
Any  other  rule  would  make  a  codicil,  merely  republishing  a  will,  operate  as  a 
new  liCfiuest,  and  so  revoke  any  codicil  by  which  a  legacy  given  by  the  will 
had  been  revoked,  and  undo  every  act  by  which  it  may  have  been  adeemed  or 


EX     PAKTE     PYE.  —  CHANCEY'S     CASE,  569 

satisfied.  The  cases  are  consistent  with  this,  as  Drinhii-ater  v.  Falconer,  (2 
Ves.  623  ;)  Monch  v.  Monch,  (1  Ball  &  B.  298  ;)  Booker  v.  Allen,  (2  Buss.  & 
My.  270  i)  and  the  case  of  Roome  v.  Roome,  (3  Atk.  181,)  is  not  an  authority 
against  these  decisions,  because  the  codicil  was  not  considered  in  that  case  as 
reviving  an  adeeming  legacy,  it  having  been  decided  that  there  was  no  ademp- 
tion." Nor  is  the  codicil,  in  such  a  case,  any  evidence  or  additional  proof 
that  no  ademption  was  intended.  ••  See  Powijs  v.  Mansfield,  3  My.  &  Cr.  376; 
Roome  V.  Roome,  3  Atk.  181  ;   3Iontague  v.  Montague,  15  Beav.  565,  571. 

"Where,  however,  a  codicil  refers  to  a  particular  legacy,  which  has  been 
adeemed,  and  treats  it  as  an  existing  legacy,  and  then  gives  something  in 
addition  to  it,  the  legatee  will  take  both  legacies  :  Hopioood  v.  Jlojncood,  22 
Beav.  488  ;  3  Jur.  N.  S.  549. 

The  presumption,  however,  of  satisfaction  being  intended,  may  be  repelled 
by  the  intrinsic  evidence  furnished  by  the  different  nature  of  the  gifts;  where, 
for  instance,  the  testamentary  portion  and  subsequent  advancement  are  not 
ejusdem  generis.  See  Holmes  v.  Holmes,  1  Bro.  C.  C.  555,  where  a  legacy 
to  a  son,  of  £500  was  held  not  to  be  adeemed  by  a  subsequent  gift  of  one-half 
of  the  testator's  stock  in  trade,  valued  at  £1500  ;  and  see  Davys  v.  Boucher, 
3  Y.  &  C.  Exch.  Ca.  411 ;  but  see  the  remarks  of  Lord  Cottenham  on  Holmes 
V.  Holmes,  in  Pt/m  v.  Lochyer,  5  My.  &  Cr.  48.  So,  also,  where  the  testa- 
mentary portion  is  certain,  and  the  subsequent  advancement  depends  upon  a 
contingency,  the  presumption  of  satisfaction  will  be  repelled  :  Sphiks  v.  Ro- 
bins, 2  Atk.  493;    Comj^fon  v.  Sale,  2  P.  Wms.  553. 

*But  where  the  advancement  was  voidable  only  upon  a  remote  con-  r>!cq.7c-| 
tingency,  and  which  was  considered  by  the  party  putting  himself  in 
loco  parentis  and  by  all  the  other  parties  as  equal  to  an  absolute  estate.  Lord 
Cottenham  held,  that  the  presumption  against  double  portions  arose  :  Poicys 
V.  Mamfidd,  3  My.  &  Cr.  359,  374. 

It  has  been  held,  that  where  the  bequest  is  of  an  uncertain  amount,  as  a 
bequest  of  a  residue  or  part  of  a  residue,  the  presumption  will  not  arise  ;  and  in 
Freemantle  V.  Banlces,  5  Ves.  85,  Lord  Rosslyn  observed,  that  the  fallacy  of 
the  argument  in  favor  of  the  advancement  by  the  gift  of  a  residue  being  au 
ademption,  was  in  considering  it  as  a  gift  of  a  portion.  That  it  never  could 
be  so  considered,  as  the  idea  of  a  portion  ex  vi  termini  was  a  definite  sum. 
And  see  Farnham  v.  PMlUps,  2  Atk.  215 ;  Smith  v.  Strong,  4  Bro.  C.  C. 
493  ;  Watson  v.  The  Earl  of  Lincoln,  Amb.  327  ;  Davys  v.  Boucher,  3  Y.  & 
C.  Exch.  Ca.  397.  However,  as  it  has  since,  upon  a  full  review  of  the  autho- 
rities, been  decided,  in  the  important  case  of  Lady  Thynne  v.  The  Earl  of 
Glfingall,  2  H.  L.  Ca.  131,  (which  will  be  more  fully  noticed,)  that  the  be- 
quest of  a  residue  will,  according  to  its  amount,  be  a  satisfaction  of  a  portion, 
either  in  full  or  pro  tanto,  it  seems  difficult,  upon  sound  principle,  to  avoid 
holding  that  a  portion,  by  settlement  or  otherwise,  will  in  like  manner  be  a 
satisfaction  of  a  previous  bequest  of  a  residue. 

Although  a  legacy  given  to  a  child  is  limited  over  upon  a  contingency,  it 
may  be  adeemed  by  a  subsequent  advancement  to  the  child  alone,  so  as  to 


570  SATISFACTION.  —  ADEMPTION. 


deprive  the  person  entitled  under  the  limitation  over  of  all  benefit.  Thus,  in 
Twlninij  V.  Fon-eU,  2  Coll.  202,  a  testatrix  in  loco  parentis  to  Ljdia  Mosse, 
bequeathed  to  her  as  her  adopted  child  £10,000  in  money,  with  a  liniitation 
over  to  a  charity  in  case  Lydia  Mosse  died  without  children.  The  testatrix 
afterwards  transferred  £12,000  Consols  into  the  joint  names  of  herself  and 
Lydia  Mosse.  It  was  held  by  the  Vice-Chanccllor  Knight  Bruce,  not  only 
that  the  legacy  was  adeemed  as  to  Lydia  Mosse,  but  was  also  extinguished  as 
to  the  charity.  "The  claim  of  the  Attorney-General,"  said  his  Honor,  "  in 
respect  of  the  £10,000  is  one  that  created  some  difficulty  in  my  mind.  As  to 
Miss  Mosse,  that  legacy  was  adeemed  or  satisfied,  and  I  think  that  Miss  Mosse, 
surviving  the  testatrix,  was  intended  by  her  to  become,  and  accordingly  is, 
absolutely  entitled  to  the  stock  by  means  of  which  it  was  adeemed  or  satisfied. 
The  question  is,  whether  the  stock,  being  exempt  from  any  provision  in  favor 
of  charity,  and  Miss  Mosse  being  barred  of  any  interest  or  claim  under  the 
will  in  respect  of  the  £10,000,  there  is  still  an  effectual  testamentary  provision 
in  favor  of  charity  as  to  that  sum,  in  *the  possible  event  of  her  dying 
L  ^-*^J  without  leaving  a  child,  as  I  think  there  would  have  been  had  there 
been  no  ademption, — no  satisfaction.  This  question,  I  repeat,  has  appeared 
to  me  one  of  some  embarrassment ;  but  I  have  come  to  the  conclusion,  that 
the  testatrix  cannot  be  held  to  have  intended,  that,  in  the  event  of  the  legacy 
of  £10,000  being  in  her  lifetime  adeemed  or  satisfied  as  to  Miss  Mosse  by  the 
testatrix,  (who,  it  is  plain,  had  placed  herself  before  the  will,  and  considered 
herself,  at  the  date  of  the  will,  in  loco  parentis  towards  Miss  Mosse,)  it  should 
not  be  held  extinguished  for  every  purpose,  and  should  not,  therefore,  be  con- 
sidered as  falling  absolutely  into  the  residue.  I  think  that  I  decide  in  con- 
formity with  the  intention  of  the  testatrix,  and  am  not  contravening  any  rule 
of  law,  in  saying  that  the  legacy  of  £10,000,  as  a  legacy,  is  extinguished,  and 
has  fallen  into  the  residue." 

An  advancement  may  be  made  to  a  child  as  a  portion,  at  other  times  than 
that  of  marriage,  and  the  presumption  against  double  portions  will  then  arise. 
For  instance,  if  a  subsequent  gift  be  described  in  a  writing  as  a  portion,  or  if 
an  advancement  be  made  not  evidenced  by  writing,  evidence,  as  will  hereafter 
be  more  fully  shown,  is  admissible  to  show  the  nature  of  the  transaction ;  but 
the  Court  will  not  add  up  small  sums  which  a  parent  may  give  to  a  child,  to 
show  they  were  intended  as  a  portion  :  see  Suisse  v.  Lowther,  2  Hare,  434. 

2d.  With  reqnct  to  the  satis/action  of  a  portion  hij  a  legaci/,  (upon  which 
subject  the  case  of  Ilinchdiffe  v.  Hinchdiffe,  3  Ves.  516,  is  a  leading  autho- 
rity,) the  rule  is,  that  wherever  a  legacy  given  by  a  parent,  or  a  person  standing 
in  loco  parentis,  is  as  great  as,  or  greater  than,  a  portion  or  provision  previously 
secured  to  the  legatee  upon  marriage  or  otherwise,  then,  from  the  strong  incli- 
nation of  courts  of  equity  against  double  portions,  a  presumption  arises  that 
the  legacy  was  intended  by  the  testator  as  a  complete  satisfaction,  {Bruen  v. 
Brucn,  2  Vern.  430;  Jloiihon  v.Mouhon,  1  Bro.  C.  C.  82;  Chplci/y.  Coplei/, 
1  P.  Wms.  147  ;  AcJacorth  v.  Adacorth,  1  Bro.  C.  C.  307,  n. ;  B>jdev.  Bijdc, 
1  Bro.  C.  C.  308,  u. ;  S.  C,  2  Eden,  10 ;  1  Cox,  44 ;   Duhc  of  Somerset  v. 


EX     PARTE     PYE. — CHANCEY'S     CASE.  571 

Duchess  of  Somerset,  1  Bro.  C.  C.  309,  n. ;  Finch  v.  Finch,  1  Ves.  jun.  534 ; 
Einchcliffe  v.  HinchcUffe,  3  Ves.  516;  Sparkes  v.  Cater,  3  Ves.  530;  Pole 
V.  Lord  Somers,  6  Ves.  309  ;  Bengough  v.  Walker,  15  Ves.  507 ;  and  see 
Lethridge  v.  Thurlow,  15  Beav.  334 ;)  if  the  legacy  is  not  so  great  as  the 
portion  or  provision,  a  presumption  arises  that  it  was  intended  as  a  satisfaction 
pro  tanto. :  Warren  v.  Warren,  1  Bro.  C.  C.  305;  1  Cox,  41;  and  the  bequest 
of  the  whole  or  part  of  a  residue  will,  according  to  its  amount,  be*pre-  r^oQY-i 
sumed  either  a  satisfaction  of  a  portion  in  full,  or  pro  tanto.  Thus,  in 
Lady  Thynne  v.  The  Earl  of  Glengall,  2  H.  L.  Ca.  131,  in  which  case  a 
father  having,  upon  the  marriage  of  one  of  his  two  daughters,  agreed  to  give 
her  a  portion  of  £100,000  £3  per  cent.  Consols,  transferred  one-third  part 
thereof  in  stock  to  the  four  trustees  of  the  marriage  settlement,  and  gave  them 
his  bond  for  transfer  of  the  remainder  in  like  stock  upon  his  death,  the  latter 
stock  to  be  held  by  them  in  trust  for  the  daughter's  separate  use  for  life,  and 
after  her  death  for  the  children  of  the  marriage,  as  the  husband  and  she  should 
jointly  appoint.  The  father  afterwards,  by  his  will,  gave  to  tico  of  the  trustees 
a  moiety  of  the  residue  of  his  personal  estate,  in  trust  for  his  daughter's  sepa- 
rate use  for  life,  remainder  for  her  children  generally,  as  she  should  by  deed 
or  will  appoint ;  it  was  held  in  the  House  of  Lords,  affirming  the  decision  of 
Lord  Langdale,  M.  E.,  (reported  1  Kee.  769,)  that  the  moiety  of  the  residue 
given  by  the  will  was  in  satisfaction  of  the  sum  of  stock  secured  by  the  bond, 
notwithstanding  the  difference  of  the  trusts;  and  it  being  found  to  be  for  the 
benefit  of  the  daughter  and  her  children,  if  she  should  have  any,  to  take  under 
the  will,  she  was  bound  to  elect  so  to  take ;  and  see  Richman  v.  Morgan,  1 
Bro.  C.  C.  63;  2  Bro.  C.  C.  394;  Bengough  v.  Walker,  15  Ves.  507. 

And  since  courts  of  equity  lean  strongly  against  double  portions,  as  in  the 
preceding  class  of  cases,  slight  differences  between  the  settlement  and  the  will 
are  not  considered  sufficient  to  repel  the  presumption  of  satisfaction;  as,  for 
instance,  a  slight  variation  between  the  settlement  and  the  will  as  to  the  times 
of  the  payment  of  the  portion  or  legacy,  or  a  slight  variation  between  the 
limitations  in  the  settlement  and  the  will.  See  Sparkes  v.  Cator,  3  Ves.  430  ; 
Weall  V.  Rice,  2  Russ.  &  My.  251 ;  Earl  of  Glengall  v.  Barnard,  1  Kee. 
769  ;  S.  C,  nom.  Lady  Thynne  v.  Earl  of  Glengall,  2  H.  L.  Ca.  131. 

The  presumption,  however,  of  satisfaction  being  intended,  may,  as  in  the 
former  class  of  cases,  be  repelled  by  intrinsic  evidence,  showing  the  intention 
of  the  parent  in  favor  of  double  portions,  {Lethhridge  v.  Thurlow,  15  Beav. 
334,)  which  may  aho  be  sufficiently  indicated  from  the  different  nature  of  the 
gifts.  For  instance,  where  the  portion  is  vested  and  the  legacy  is  contingent, 
the  presumption  will  be  repelled  :  for  it  would  be  hard  to  say,  that  a  mere 
contingency  should  take  away  a  portion  absolutely  vested  :  Bellasis  v.  Uthicatt, 
1  Atk.  426;  Hanhuryv.  Uanhury,  2  Bro.  C.  C.  352.  And  see  Piercer. 
Locke,  2  Jr.  Ch.  Rep.  205,  215. 

So,  also,  where  the  gift  by  the  will  and  the  portion  are  not  ejusdem  generis, 
the  presumption  will  *be  repelled.  Thus,  land  will  not  be  presumed  r*o9o-| 
to  be  intended  as  a  satisfaction  for  money,   nor  money  for  land  :         " 


572  SATISFACTION.  —  ADEMPTION. 

Bellasis  v.  Uthimtt,  1  Atk.  428;  Good/dloio  v.  Burchett,  2  Vern.  298  j 
Rai/  V.  Stanhope,  2  Ch.  Rep.  159  ;  Savile  v.  Savile,  2  Atk.  458;  Grave  v. 
Earl  of  Salishury,  1  Bro.  C.  C.  425.  However,  in  Bengough  v.  Walker, 
15  Ves.  507,  it  was  held  by  Sir  W.  Grant,  M.  R.,  that  a  bequest  by  a  testator 
to  his  son  of  a  share  in  powder  works,  to  be  made  up  in  value  to  £10,000 
charged  with  an  annuity  for  the  life  of  another  person,  was  a  satisfaotion  of  a 
portion  of  £2000,  to  which  he  was  entitled  under  the  testator's  marriage  set- 
tlement. 

Sometimes  a  settlement  contains  a  declaration  that  an  advancement  by  the 
parent,  in  his  lifetime,  shall  be  considered  in  part  or  full  satisfaction  of  the 
portion,  unless  the  contrary  is  expressly  declared  by  some  writing.  In  such 
cases,  a  question  may  arise,  whether  a  legacy  by  will  shall  be  considered  as  an 
advancement  in  the  lifetime  of  the  parent.  It  has  been  decided  that  it 
will  be  so  considered,  and  that  a  legacy  of  a  particular  sum,  or  of  a  re- 
sidue, for  it  appears  immaterial  which,  will  be  held  a  satisfaction  in  full,  or 
pro  tanto  of  the  portion  :  (^Onsloio  v.  Michell,  18  Ves.  490;  Leake  v.  Leake, 

10  Ves.  489;  Golding  v.  Uaverfield,  M'Cl.  345;  Noely.  Lord  Walsingliam, 
2  S.  &  S.  99 ;   Fazakerley  v.  GilUbrand,  6  Sim.  591 ;   Papillon  v.  Papillon, 

11  Sim.  642 ;  sed  vide  Doxiglas  v.  Willis,  7  Hare,  310  ;)  but  the  share  of  a 
parent's  property  under  his  intestacy,  will  not  be  considered  as  an  advance- 
ment in  his  lifetime  :    Tioisden  v.  Twisden,  9  Ves.  413. 

It  seems  that  where  a  parent,  or  person  in  loco  parentis,  makes  a  provision 
by  a  settlement  for  his  children  equal  to  or  greater  than  a  provision  contained 
in  a  former  settlement,  it  may  be  considered  as  a  satisfaction ;  as,  for  instance, 
where,  by  a  will  executed  contemporaneously  with  the  second  settlement,  he 
declares  that  a  provision  contained  in  it  is  to  be  taken  as  a  satisfaction. 
Davis  X.  Chambers,  3  Jur.  N.  S.  297.  But  no  presumption  will  arise  where 
there  are  those  distinctions  between  the  nature  of  the  two  gifts,  which  the 
Court  ha^  relied  upon  in  cases  of  satisfaction  upon  wills,  to  show  that  the  pre- 
sumption does  not  arise  :  see  Palmer  v.  Newell,  20  Beav.  32,  40,  where  Sir 
John  llomilly,  M.  R.,  was  of  opinion  that  the  presumption  less  readily  arises 
in  the  instance  of  gifts  by  two  deeds,  than  in  cases  where  the  second  gift  is 
by  a  will,  in  which  latter  case  a  testator  is  supposed  to  be  disposing  of  the 
whole  of  his  property,  and  distributing  it  amongst  the  different  objects  of  his 
bounty.     lb.  40. 

Election. — Where,  as  in  the  former  class  of  cases,  the  first  provision  is  by  a 
r*o.>rn  "^^'i^'j  it  being  a  *voluntary  and  revocable  instnJment,  a  subsequent 
~  advance  will  be  a  satisfaction,  either  wholly  or  in  part,  without  refer- 
ence to  the  wishes  of  the  person  advanced ;  if,  however,  as  in  the  latter  class 
of  cases,  the  first  provision  is  by  settlement  or  other  contract,  a  subsequent 
legacy,  considered  as  an  advancement,  will  raise  a  case  of  election, — that  is  to 
say,  the  legatee  may,  at  his  'option,  take  either  the  first  or  last  provision  : 
see  2  Ves.  jun.  405,  n.(a)  ;  CopU)/  v.  Copley,  1  P.  Wms.  147  ;  Finch  v.  Finch, 
Ves.  jun.  534;  Ilinchcliffe  v.  Illnchcliffc,  3  Ves.  51G ;  Pole  v.  Lord 
Somers,  6  Ves.  309.    As  to  election  by  a  married  woman,  see  Lady  Thynne  v. 


EX     PAKTE     PYE. — CHANCEY'S     CASE.  573 


Earl  of  Glengall,  2  H.  L.  Ca.  118  ;  and  as  to  the  doctrine  generally,  see  ante, 
Vol.  1,  pp.  281,  303. 

As  to  the  admission  of  Extrinsic  Evidence.  —Although  extrinsic  evidence 
cannot  be  admitted  to  alter,  add  to,  or  vary  a  written  instrument,  or  to  prove 
with  what  intention  it  was  executed,  it  seems  to  be  clear  that,  where  a  transac- 
tion takes  place,  not  evidenced  by  writing,  which,  if  so  evidenced,  would  raise 
a  presumption  that  satisfaction  of  a  former  gift  by  will  was  intended,  parol 
evidence  is  admissible  to  prove  what  the  transaction  really  was.  Thus,  in 
Hosldns  V.  Ilos/cins,  Prec.  Ch.  2G3,  the  father,  after  giving  £750  to  his  son 
by  will,  purchased  a  cornetcy  for  him  for  £650.  Evidence  was  admitted  to 
show  that  this  was  intended  as  a  satisfaction  pro  tanto.  This  subject  was 
much  discussed  by  the  Vice-Chancellor  Wigram,  in  Kirk  v.  Eddowes,  3 
Hare,  509.  There,  a  father  by  will  gave  £3000  to  the  separate  use  of  his 
daughter  for  life,  with  remainder  to  her  children;  and  after  the  date  of  the 
will,  he  gave  to  his  daughter  and  her  husband  a  promissory  note  for  £500 
then  due  to  him.  Parol  evidence  was  tendered  to  show  that,  after  the  date 
of  the  will,  the  testator  was  requested  by  his  daughter  to-  confer  some  benefit 
on  her  husband,  and  that  thereupon  the  testator  gave  her  the  promissory  note, 
declaring  that  it  was  to  be  in  part  satisfaction  of  the  legacy  of  £3000 ;  and 
that  the  testator  was  advised  by  his  solicitor,  that  it  was  not  necessary  to  alter 
his  will  to  give  it  that  effect :  it  was  held,  that  this  evidence  was  admissible, 
as  constituting  an  essential  part  of  a  transaction  subsequent  to  and  independent 
of  the  will,  of  which  subsequent  transaction  there  was  no  evidence  in  writino-. 
His  Honor,  after  noticing  the  rule  of  law  against  admitting  parol  evidence  to 
add  to  or  explain  a  written  instrument,  says,  "  In  this  case,  the  advance  of 
the  £500  was  after  the  date  of  the  will.  This,  the  second  transaction,  how- 
ever, is  not  evidenced  by  any  writing ;  and  the  technical  rule  to  which  I  have 
referred,  against  admitting  evidence  to  prove  what  was  the  ^intention  r^.Ton-i 
of  the  parties  to  that  transaction,  does   not  therefore  apply.      The  -* 

question  is,  whether  any  other  rule  applies  which  shall  exclude  the  evidence. 
In  order  fully  to  try  this  question,  I  will  first  suppose  the  £3000  to  have  been 
given  absolutely  to  Mrs.  Kirk  for  her  separate  use.  The  defendant's  evidence 
was  not  objected  to,  nor  could  it  have  been  successfully  objected  to,  so  far  as  it 
went  to  show  the  gift  of  the  note,  its  amount,  and  the  other  circumstances 
attending  it,  with  the  exception  of  the  testator's  declarations  accompanying 
the  gift;  for  the  Court,  which  has  to  decide  whether  the  transaction  has 
eflfected  a  partial  ademption  of  the  legacy,  must  know  what  the  transaction 
was ;  but  the  declarations  of  the  testator,  accompanying  the  transactions,  were 
objected  to.  Why  should  those  accompanying  declarations  not  be  admissible? 
They  are  of  the  essence  of  the  transaction,  and  the  truth  of  the  transaction 
itself  cannot  be  known  to  the  Court  without  them.  The  rule  which  would 
exclude  the  evidence,  if  the  intention  of  the  parties  had  been  expressed  in 
writing,  does  not  apply.  I  assume  that,  if  the  intention  of  the  parties,  as 
proved  by  the  evidence,  had  been  in  writing,  it  could  not  be  contended,  on 
the  part  of  Mrs.  Kirk,  to  whom  the  legacy  was  given  for  her  separate  use 


674  SATISFACTION. — ADEMPTION. 

absolutely,  that  a  payment  to  her  husband  of  the  amount  of  her  legacy,  at  her 
instance  and  at  her  request,  would  not  have  precluded  her  from  claiming  it 
under  her  father's  will ',  or  in  other  words,  that  the  advance  made  under  such 
circumstances,  would  not  have  adeemed  the  legacy.  If  that  be  not  so,  the  argu- 
ment must  be,  that  an  advance  made  by  a  testator  to  one  of  his  legatees,  under 
an  agreement  in  writing  that  the  legatee  shall  accept  the  advance  in  full 
satisfaction  of  his  legacy,  would  leave  the  legatee  at  liberty  to  claim  the  legacy, 
notwithstanding  the  agreement ;  and  if  such  an  argument  be  not  admissible, 
the  declarations  of  the  testator  must  be  admissible  in  the  case  I  am  now  sup- 
posing, unless  there  be  some  rule  of  law  which  hinders  a  transaction,  like  that 
which  the  defendant  relies  upon,  from  being  valid,  unless  it  be  evidenced  by 
writino-.  This,  however,  cannot  be  successfully  contended  for.  The  evidence 
does  not  touch  the  will ;  it  proves  only,  that  a  given  transaction  took  place 
after  the  will  was  made,  and  proves  what  that  transaction  was,  and  calls  upon 
the  Court  to  decide,  whether  the  legacy  given  by  the  will  is  not  thereby 
adeemed.  Ademption  of  the  legacy,  and  not  revocation  of  the  will,  is  the  con- 
sequence for  which  the  defendant  contends — a  distinction  which  is  marked  by 
Lord  Hardwicke,  in  the  case  of  Rosewell  v.  Bennett,  (3  Atk.  77.)  The  de- 
fendant does  not  say  the  will  is  revoked;  he  says,  the  ^legatee  has 
L  -'  received  his  legacy  by  anticipation.  In  principle,  therefore,  I  cannot 
see  my  way  to  reject  the  evidence  in  question.  How,  then,  does  the  case 
stand  upon  authority?  The  cases  of  Monde  \.  Lord  Monde,  (1  Ball  &  B. 
298  ;)  Rosewell  v.  Bennet,  (3  Atk.  77  ;)  Thelluson  v.  Woodford,  (4  Madd. 
420 ;)  Bell\.  Coleman,  (5  Madd.  22  5)  Biggleston  v.  Gridjh,  (2  Atk.  48  ;)  Eos- 
Jcins  V.  Hoshins,  (Prec.  Ch.  268 ;)  Cliapman  v.  Salt,  2  Yern.  646;  Powells. 
Cleaver,  (2  Bro.  C  C.  499;)  Grave  v.  Lord  Salisbury,  (1  Bro.  C  C.  425;) 
Ex  parte  Etihosf,  (18  Ves.  140  ;)  Shmhd  v.  Jcki/ll,  (2  Atk.  516,)  are  all 
authorities  in  favor  of  admitting  the  evidence.  In  Eall  v.  Eill,  (1  D.  & 
"War.  118,)  the  Lord  Chancellor  of  Ireland  refers,  with  marked  approbation, 
to  the  cases  of  Roseicell  v.  Bennet,  Biggleston  v.  Gritlb,  and  Monck  v.  Lord 
Monde  upon  this  point.  I  am  aware  that  an  argument  may  be  raised  as  to 
how  far  the  admission  of  the  evidence,  in  the  cases  I  have  cited,  or  the 
greater  part  of  them,  may  be  referred  to  the  principle  to  which  I  have  before 
adverted — that  of  applying  it  to  a  presumption  first  raised  by  the  Court.  Such 
an  ar"-ument,  however,  will  be  found,  upon  examination,  not  to  be  sustainable  ; 
for  if  the  law  would  in  those  cases  have  raised  the  presumption,  the  evidence 
which  was  objected  to  was  unnecessary,  there  being  no  evidence  to  countervail 
the  presumption.  But  the  evidence,  though  objected  to  in  some  of  the  cases, 
was  received,  and  therefore  must  have  been  read,  to  prove  what  the  transac- 
tion was.  And  it  is  remarkable  that,  in  Thelluson  v.  ^Yoodford,  although  the 
exception  to  the  Master's  report  raised  the  question,  whether  the  evidence 
was  admissible,  the  eminent  counsel  who  argued  against  the  ademption  barely 
threw  out  a  question,  whether  the  evidence  was  admissible,  without  arguing 
against  its  admissibility;  and  Sir  John  Leach  said,  '  This  is  not  a  case  of  im- 
plication, but  of  express  declaration.'     Admitting,  therefore,  in   the  fullest 


EX     PARTE     PYE. — CHANCEY'S     CASE.  575 


manner,  that  parol  evidence  is  inadmissible  to  prove  that  a  will  or  other 
written  instrument  was  intended  to  have  an  effect  not  expressed  in  it,  still, 
with  the  opinion  of  the  Lord  Chancellor  of  Ireland,  so  recently  expressed, 
upon  the  point,  and  the  other  authorities  I  have  referred  to,  supporting  the 
opinion  which  I  individually  entertain,  that  the  evidence  is  admissible,  I  shall 
receive  it. 

''  The  subject  has  been  very  elaborately  coupidered  by  Mr.  Roper,  (Tr.  on 
Leg.,  Vol.  1,  p.  341,  et  seq.)  I  cannot  but  think  the  learned  writer  has  not 
sufficiently  kept  in  mind  the  distinction  between  ademption  and  revocation, 
nor  between  the  cases  in  which  the  intention  of  the  parties  has  been  reduced 
into  writing,  and  those  in  which  the  Court  has  had  to  ascertain,  *by 
parol  evidence  only,  what  the  parties  had  done.  It  was  said  that  L  ^^^^ 
there  was  a  distinction  in  this  case,  inasmuch  as  the  advance  was  made,  not, 
as  in  the  cases  cited,  to  the  legatee  herself,  but  to  the  husband  of  the  legatee. 
That  circumstance  might  be  material  upon  the  question  of  implied  ademption  ; 
but  it  cannot  affect  the  question  of  admitting  or  rejecting  the  evidence  to  prove 
what  the  transaction  was.  In  more  than  one  of  the  cases  cited,  the  same  cir- 
cumstance occurred."     See  Twining  v.  Powell,  2  Coll.  263. 

Where,  however,  there  are  two  written  instruments,  and  from  the  relation- 
ship between  the  author  of  the  instruments  and  the  party  claiming  under  them 
(as  in  the  actual  or  assumed  relation  of  parent  and  child,)  the  law  raises  the 
presumption  that  a  gift  contained  in  the  second  instrument  is  intended  to  be 
in  satisfaction  of  a  gift  by  an  instrument  of  earlier  date,  evidence  may  be  gone 
into  to  show  that  such  presumption  is  not  in  accordance  with  the  intention  of 
the  author  of  the  gift;  and  where  evidence  is  admissible  for  that  purpose, 
counter  evidence  is  also  admissible.  See  Deheze  v.  Mann,  2  Bro.  C.  C.  165, 
519;  Ellison  v.  Coolison,  3  Bro.  C.  C.  61;  Trimmer  \.  Bcujne,  7  Ves.  508, 
515. 

But  in  such  cases,  it  is  well  observed  by  Sir  J.  Wigram,  V.  C,  "The  evi- 
dence is  not  admitted  on  either  side,  for  the  purpose  of  proving,  in  the  first 
instance  with  what  intent  either  writing  was  made,  but  for  the  purpose  only 
of  ascertaining  whether  the  presumption  which  the  law  has  raised  be  well  or 
ill  founded  :"  3  Hare,  517.     See  Palmer  v.  Newell,  20  Beav.  39. 

There  is,  however,  a  dictum  of  Sir  J.  Leach,  in  the  case  of  Weall  v.  Rice, 
2  Buss.  &  My.  251,  263,  which  seems  inconsistent  with  the  law  upon  this 
subject,  as  it  is  at  present  understood.  "The  rule  of  this  Court,"  said  his 
Honor,  "is,  as  ought  to  be,  that  if  a  father  makes  a  provision  for  a  child  by 
settlement  on  marriage,  and  afterwards  makes  a  provision  for  the  same  child 
by  his  will,  it  is  prima  facie  to  be  presumed  that  he  does  not  mean  a  double 
provision  ;  but  this  presumption  may  be  repelled  or  fortified  by  intrinsic  evi- 
dence derived  from  the  nature  of  the  two  provisions,  or  by  extrinsic  evidence. 
Where  the  two  provisions  are  of  the  same  nature,  or  there  are  but  slight  differ- 
ences, the  two  instruments  afford  intrinsic  evidence  against  a  double  provision. 
Where  the  two  provisions  arc  of  a  different  nature,  the  two  instruments  afford 
intrinsic  evidence  in  favor  of  a  double  provision.     But  in  either  case,  extrinsic 


576  SATISFACTIOX.  —  ADEMPTION. 

evidence  is  admissible  of  the  real  intention  of  the  testator.  It  is  not  possible 
to  define  what  are  to  be  considered  as  slight  differences  between  two  provisions. 

Slight  ^differences  are  such,  as  in  the  opinion  of  the  iudge,  leave  the 
L  ^'^^J  i^Q  provisions  substantially  of  the  same  nature;  and  every  judge  must 
decide  that  question  for  himself."  In  this  case  the  settlement  was  first  and 
the  will  last.  And  see  Uuyd  v.  Ilcrveij,  2  Russ.  &  My.  310,  316,  and  Lord 
Langdale's  remark  in  Lord  Glenyall  v.  Barnard,  1  Kee.  769.  In  the  case, 
of  BooJcer  v.  Allen,  2  Russ.  &  My.  370,  where  the  will  was  before  the  settle- 
ment. Sir  J.  Leach  admitted  parol  evidence  to  prove  that  the  testator,  who 
had  put  himself  in  loco  parentis  towards  the  donee,  intended  the  provision 
made  by  the  settlement  to  be  in  lieu  of  a  legacy  given  by  the  will ;  and  held, 
that  the  gift  by  the  settlement  was  a  satisfaction  of  the  legacy,  though  the 
two  provisions  differed  so  much  from  each  other,  that  they  could  not  be  con- 
sidered substantially  the  same. 

It  is,  however,  submitted  that  the  parol  evidence  in  BooJcer  v.  Allen  ought 
not  to  have  been  admitted,  as  it  was  in  contradiction  to  a  written  instrument. 
See  Hall  v.  Hill,  C.  &  L.  120 ;  1  D.  &  War.  94. 

Where  a  person  is  considered  to  have  placed  himself  in  loco  parentis. — 
Where  a  person  who  has  made  two  gifts  to  another,  in  such  manner  as,  accord- 
ino-  to  the  rules  laid  down  in  considering  the  two  classes  of  cases  before  dis- 
cussed, would,  in  case  he  stood  towards  the  donee  in  the  relation  of  parent, 
raise  the  presumption  that  the  latter  gift  was  intended  to  be  a  satisfaction  of 
the  former,  the  question  often  arises,  and  it  is  one  by  no  means  always  easy  of 
solution,  whether  the  donor,  although  not  standing  to  the  donee  in  that  rela- 
tion, has  not,  by  his  conduct,  placed  himself  in  it,  or,  as  it  is  usually  termed, 
put  himself  in  loco  parentis;  in  which  case,  as  before  observed,  the  presump- 
tion will  arise  equally  as  in  the  case  of  a  parent. 

^  In  the  case  of  Poicys  v.  Man  field,  3  My.  k  Cr.  359,  Lord  Cottenham  enters 
most  elaborately  into  this  somewhat  obscure  question — what  is  sufl5cicnt  to 
put  a  person  in  loco  parentis  ?  Sir  L.  Shad  well,  Y.  C,  in  that  case,  (reported 
6  Sim.  528,)  had  held,  that  no  person  can  be  deemed  to  stand  in  loco  parentis 
to  a  child  whose  father  is  living  and  who  resides  with  and  is  maintained  by 
his  father  according  to  his  means.  Lord  Cottenham,  however,  reversed  the 
decision  of  the  Vice-Chancellor.  "No  doubt,"  observed  his  Lordship,  "the 
authorities  leave  in  some  obscurity  the  question,  as  to  what  is  considered  as 
meant  by  the  expression  universally  adopted,  of  one  in  loco  parentis.  Lord 
Eldon,  however,  in  Hx  parte  Pi/e,  has  given  to  it  a  definition  which  I  readily 
adopt,  not  only  because  it  proceeds  from  his  high  authority,  but  because  it 

seems  to  me  to  embrace  all  that  is  necessary  to  work  out  and  carry  into 
L  '^•J"*J  (jffect  *the  object  and  the  meaning  of  the  rule.  Lord  l^ildon  says,  it  ia 
a  person  'meaning  to  put  himself  in  loco  parentis;  in  the  situation  ff  the  per- 
son described  as  the  laufiil  father  of  the  child.'  But  this  definition  must,  I 
conceive,  be  considered  as  applicable  to  those  parental  offices  and  duties  to 
which  the  subject  in  question  has  reference,  namely,  to  the  office  and  dtitiy  of 
the  parent  to  make  provision  for  the  child.     The  offices  and  duties  of  a  parent 


EX     PARTE     PYE. — CHANCEY'S     CASE.  577 

are  infinitely  various,  some  having  no  connection  whatever  with  making  a  pro- 
vision for  a  child ;  and  it  would  be  most  illogical,  from  the  mere  exercise  of 
any  such  offices  or  duties  by  one  not  the  father,  to  infer  any  intention  in  such 
person  to  assume  also  the  duty  oi providing  for  the  child.  The  relative  situa- 
tion of  the  friend  and  of  the  father  may  make  this  unnecessary,  and  the  other 
benefits  most  essential. 

"  Sir  William  Grant's  definition,  (see  19  Ves.  412,)  is,  '  A  person  assuming 
the  parental  character,  or  discharging  parental  duties,'  which  may  not  seem  to 
differ  much  from  Lord  Eldon's;  but  it  wants  that  which,  to  my  mind,  consti- 
tutes the  principal  value  of  Lord  Eldon's  definition,  namely,  the  referring  to 
the  intention  rather  than  to  the  act  of  the  party.  The  Vice-Chancellor  says, 
(6  Sim.  556,)  it  must  be  a  person  who  has  so  acted  towards  the  child  as  that 
he  has  thereby  imposed  upon  himself  a  moral  obligation  to  provide  for  it;  and 
that  the  designation  will  not  hold,  where  the  child  has  a  father  with  whom  it 
resides,  and  by  whom  it  is  maintained.  This  seems  to  infer  that  the  locus 
parentis  assumed  by  the  stranger  must  have  reference  to  the  pecuniary  wants 
of  the  child,  and  that  Lord  Eldon's  definition  is  to  be  so  understood;  and  so 
far  I  agree  with  it;  but  I  think  the  other  circumstances  required  are  not  ne- 
cessary to  work  out  the  principle  of  the  rule  or  to  eifectuate  its  object.  The 
rule,  both  as  applied  to  a  father,  and  to  one  in  loco  parentis,  is  founded  upon 
the  presumed  intention.  A  father  is  supposed  to  intend  to  do  what  he  is  in 
duty  bound  to  do,  namely,  to  provide  for  his  child  according  to  his  means. 
So,  one  who  has  assumed  that  part  of  the  office  of  a  father,  is  supposed  to 
intend  to  do  what  he  has  assumed  to  himself  the  office  of  doing.  If  the 
assumption  of  the  character  be  established,  the  same  inference  and  presump- 
tion must  follow.  The  having  so  acted  towards  a  child  as  to  raise  a  moral  ob- 
ligation to  provide  for  it,  affords  a  strong  inference  in  favor  of  the  fact  of  the 
assumption  of  the  character;  and  the  child  having  a  father  with  whom  it 
resides,  and  by  whom  it  is  maintained,  affords  some  inference  against  it ;  but 
neither  are  conclusive. 

"If,  indeed,  the  Vice-Chancellor's  definition  were  to  be  adopted,  it  would 
still  be  to  be  considered,  whether,  in  this  case,  *Sir  John  Barrington  r^ooK-i 
had  not  subjected  himself  to  a  moral  obligation  to  provide  for  his  bro- 
ther's children,  and  whether  such  children  can  be  said  to  have  been  main- 
tained by  their  father.  A  rich  unmarried  uncle,  taking  under  his  protection 
the  family  of  a  brother,  who  has  not  the  means  of  adequately  providing  for 
them,  and  furnishing,  through  their  father,  to  the  children,  the  means  of  their 
maintenance  and  education,  may  surely  be  said  to  intend  to  put  himself,  for 
the  purpose  in  question,  in  loco  parentis  to  the  children,  although  they  never 
leave  their  father's  roof.  An  uncle  so  taking  such  a  family  under  his  care, 
will  have  all  the  feelings,  intentions,  and  objects,  as  to  "providing  iox  the  chil- 
dren, which  would  influence  him  if  they  were  orphans.  For  the  purpose  in 
question,  namely,  providing  for  them,  the  existence  of  the  father  can  make  no 
difference.  If,  then,  it  shall  appear,  from  an  examination  of  the  evidence, 
that  Sir  John  Barrington  did  afford  to  his  brother  the  means  of  maintaining, 

VOL.  II. — 37 


578  SATISFACTION.  —  ADEMPTION. 

educating,  and  bringing  up  his  cbildren  according  to  their  condition  of  life; 
and  that  the  father  had  no  means  of  his  own  at  all  adequate  to  that  purpose; 
that  this  assistance  was  regular  and  systematic,  and  not  confined  to  casual  pre- 
sents, the  repetition  of  which  could  not  be  relied  upon ;  that  he  held  out  to 
his  brother  and  his  family,  that  they  were  to  look  to  him  for  their  future  pro- 
vision ;  it  will  surely  follow,  if  that  were  material,  that  Sir  John  Barrington 
had  so  acted  towards  the  children  as  to  impose  upon  himself  a  moral  obliga- 
tion to  provide  for  them,  and  that  the  children  were,  in  fact,  maintained  by 
him,  and  not  by  their  father.  But,  it  has  been  said  that  Sir  John  Barrington 
would  not  have  been  guilty  of  any  breach  of  moral  duty,  if  he  had  permitted 
the  property  to  descend  to  his  brother.  Undoubtedly  he  would  not,  because 
that  would  have  been  a  very  rational  mode  of  providing  for  the  children ;  but 
if  he  had  reason  to  suppose  that  his  brother  would  act  so  unnaturally  as  to 
leave  the  property  away  from  his  children,  Sir  John  Barrington  would  have 
been  o-uilty  of  a  breach  of  moral  duty  towards  the  children  in  leaving  the  pro- 
perty absolutely  to  their  father.  I  should,  therefore,  feel  great  difficulty  in 
coming  to  a  conclusion  that  Sir  John  Barrington  had  not  placed  himself  in 
loco  parentis  to  these  children,  even  if  I  thought  everything  necessary  for 
that  purpose,  which  the  Vice-Chancellor  has  thought  to  be  so. 

"Adopting,  however,  as  I  do,  the  definition  of  Lord  Eldon,  I  proceed  to 
consider  whether  Sir  John  Barrington  did  mean  to  put  himself  in  loco  parentis 
to  the  children,  so  far  as  related  to  their  future  provision.  Parol  evidence  has 
been  ofi"ercd  upon  two  points :  first,  to  prove  the  affirmative  of  *this 
L  ^'-^"J  proposition ;  secondly,  to  prove,  by  declarations  and  acts  of  Sir  John 
Barrington,  that  he  intended  the  provision  made  by  the  settlement  should  be 
in  substitution  of  that  made  by  the  will.  That  such  'evidence  is  admissible 
for  the  first  of  these  purposes,  appears  to  me  necessarily  to  flow  from  the  rule 
of  presumption.  If  the  acts  of  a  party  standing  in  loco  parentis  raise  in  equity 
a  presumption  which  could  not  arise  from  the  same  acts  of  another  person  not 
standing  in  that  situation,  evidence  must  be  admissible  to  prove  or  disprove 
the  facts  upon  which  the  presumption  is  to  depend;  namely,  whether,  in  the 
language  of  Lord  Eldon,  he  had  meant  to  put  himself  in  loco  parentis;  and, 
as  the  fact  to  be  tried  is  the  intention  of  the  party,  his  declarations  as  well  as 
his  acts,  must  be  admissible  for  that  purpose  ;  and  if  the  evidence  established 
the  fact  that  Sir  John  Barrington  did  mean  to  place  himself  in  loco  parentis, 
it  will  not  be  material  to  consider,  whether  his  declarations  of  intention  as  to 
the  particular  provision  in  question  be  admissible  perse,  because  the  presump- 
tion against  the  double  portions,  which  in  that  case  will  arise,  being  attempted 
to  be  rebutted  by  parol  testimony,  may  be  supported  by  evidence  of  the  same 
kind." 

From  Lord  Cottenham's  judgment,  therefore,  we  may  conclude,  that  the 
question,  whether  a  person  has  or  not  put  himself  in  loco  parentis,  must  be 
decided  with  reference  to  his  meaning  to  put  himself  in  that  position,  by 
assuming  the  office  and  duty  of  the  parent  to  make  j^^'oi'ision  for  the  child, 
and  that  parol  evidence  is  admissible  to  prove  that  a  person  means  to  put  him- 


EX     PARTE     PYE. — CHANCEY'S     CASE.  579 

self  ia  loco  parentis,  and  upon  proof  of  his  meaning  to  do  so,  parol  evidence  of 
his  acts  and  declarations  is  admissible  also  to  rebut  and  then  to  strengthen  the 
presumption  of  satisfaction. 

Any  relation,  or  even  a  mere  stranger,  in  no  way  related  to  another  person, 
may  be  held  to  have  meant  to  put  himself  in  loco  parentis  towards  him ;  but 
mere  relationship,  however  near,  is  not  of  itself  sufficient  to  show  that  a  person 
means  to  put  himself  in  loco  parentis  towards  another.  Thus,  great  uncles, 
uncles,  grandfathers,  and  putative  fathers,  are  not,  from  their  mere  relation- 
ship, to  be  considered  as  in  loco  parentis,  unless  it  can  be  shown  that  they 
meant  to  put  themselves  in  loco  parentis  with  reference  to  the  parent's  office 
and  duty  of  making  a  provision  for  his  child  :  Shudal  v.  Jtkyll,  2  Atk.  51G, 
518;  Powell  \.  Cleaver,  2  Bro.  C.  C.  517,  518;  Roome\.  Roome,  3  Atk. 
183 ;  Perry  v.  Whitehead,  6  Ves.  547 ;  Grave  v.  Salisbury,  1  Bro.  C.  C 
425;  Ellis  V.  Ellis,  1  S.  &  L.  1;  Twining  v.  Poioell,  2  Coll.  262;  and  Lyd- 
don  V.  Ellison,  19  Beav.  5G5,  572. 

When  satis/action  or  ademption  will  take  place  of  a  legacy  given 
*hy  a  stranger.'] — Where  a  stranger  gives  a  legacy  for  a  particxdar  L  -• 
purpose,  and  afterwards  advances  money  for  the  same  purpose,  a  presumption 
arises  that  it  was  intended  as,  and  it  will  accordingly  be  held,  an  ademption 
of  it.  '■'•  Suppose,"  asked  Lord  Manners,  "  A.  bequeathed  to  his  brother  £5000 
to  buy  a  house  in  Merion-square ;  and  that  afterwards  A.  bought  one,  which 
he  gave  to  his  brother,  are  there  two  houses  to  be  bought  ?"  Monck  y.  3Ionck, 
1  Ball  &  B.  303  ;  see  also  Rosewell  v.  Bennet,  3  Atk.  77,  and  the  observations 
of  Lord  Cottenham,  2  My.  &  Cr.  377.  From  the  cases  of  Deheze  v.  Mann,  2 
Bro.  C.  C.  166,  519,  521,  and  Trimmer  v.  Bayne,  7  Ves.  516,  it  appears  that 
parol  evidence  is  admissible  to  rebut  or  strengthen  the  presumption. 

Where,  however,  the  purpose  for  which  a  legacy  is  given  by  a  stranger,  does 
not  correspond  with  the  purpose  for  which  the  advancement  is  made,  the  legacy 
as  is  laid  down  by  Lord  Eldon,  in  Ex  parte  Pye,  will  not  be  adeemed  :  Deheze 
V.  Mann,  2  Bro.  C.  C.  165,  519  ;  Robinson  v.  Whitley,  9  Ves.  577  ;  Roome 
V.  Roome,  3  Atk.  181 ;  nor  where  the  legacy  and  advancement  are  given  upon 
different  contingencies  :   Sjnnks  v.  Robins,  2  Atk.  491. 

ordly.  With  respect  to  the  Satisfaction  of  a  Debt  by  a  Legacy.] — The  general 
rule,  as  laid  down  in  Talhott  v.  Duke  of  Shrewsbury,  is,  "  that  if  one,  beino- 
indebted  to  another  in  a  sum  of  money,  does  by  his  will  give  him  a  sum  of 
money  as  great  as,  or  greater  than,  the  debt,  without  taking  any  notice  at  all 
of  the  debt,  this  shall,  nevertheless,  be  in  satisfaction  of  the  debt,  so  that  he 
shall  not  have  both  the  debt  and  the  legacy."  See,  also,  Brown  v.  Dawson 
Prec.  Ch.  240;  Foider  v.  Fowler,  3  P.  Wms.  353;  Richardson  v.  Greese,  3 
Atk.  68  ;  Gaynon  v.  Wood,  1  Dick.  331 ;  Bensusaii  v.  Nehemias,  4  De  Gex  & 
Sm.  381. 

This  rule  or  presumption  is  founded  upon  the  maxim  Debitor  non  presumitur 
donare.  It  has  also  been  urged,  in  support  of  this  presumed  satisfaction,  that 
a  man  ought  to  be  just  before  he  is  bountiful ;  but  this  observation  has  been 
well  answered  by  Lord  Chancellor  King,  in  Chancey's  case,  that,  when  a  man 


580  SATISFACTION. — ADEMPTION. 

had  left  sucli  an  estate  and  fund  for  his  debts  and  legacies,  as  that  he  might 
thereout  be  both  just  and  bountiful,  he  did  not  see  but  it  would  be  as  reason- 
able that  the  whole  legacy  should  take  effect  as  a  legacy,  and  that  the  debt 
should  be  paid  likewise  :  Foxoler  v.  Foioler,  3  P.  Wms.  354. 

The  rule  as  to  the  presumption  of  the  satisfaction  of  a  debt  by  a  legacy  is 
founded  upon  reasoning  alike  artificial  and  unsatisfactory,  and  it  has  conse- 
quently met  with  the  censure  of  the  most  eminent  judges,  who,  although  they 

would  not  break  the  rule,  have  at  the  same  time  said  they  would  not 
r*33S1  •  • 

L  go  *one  jot  further,  and  have  always  endeavored  to  lay  hold  of  trifling 

circumstances  in  order  to  take  cases  out  of  it :  Lad)/  Tliynne  v.  The  Earl  of 

Glcngall,  2  H.  L.  Ca.  153  ;  Richardson  v.  Greese,  3  Atk.  65. 

There  is,  in  fact,  in  this  class  of  cases,  a  leaning  against,  as  in  the  two  for- 
mer classes  of  cases  a  leaning  \n  favor  oi,  the  presumption  of  satisfaction. 
Thus,  where  the  legacy  is  of  less  amount  than  the  debt,  the  presumption  is, 
that  it  was  not  intended  to  be  given  in  lieu  of  it;  it  will,  therefore,  not  be 
considered  a  satisfaction,  even  pro  tanto,  as  in  the  two  former  classes  of  cases 
of  satisfaction  :  Cranmer's  case,  2  Salk.  508  ;  Atkinson  v.  Wehb,  2  Vern.  478  j 
Eastwood  V.  Vinke,  2  P.  Wms.  614,  617 ;  Minuel  v.  Sarazine,  Mos.  295 ; 
Graham  v.  Graham,  1  Yes.  203. 

So,  also,  the  presumption  of  satisfaction  being  intended,  will  be  repelled 
where  the  legacy,  though  in  amount  equal  to  or  greater  than  the  debt,  is  pay- 
able at  different  times,  so  as  not  to  be  equally  advantageous  to  the  legatee  as 
the  payment  of  the  debt :  Athinson  v.  Wehh,  Prec.  Ch.  236 ;  Nicholls  v.  Jad- 
soii,  2  Atk.  300;  Hales  t.  Darell,  3  Beav.  324,  332;  and  see  Mathews  y. 
Matheu-s,  2  Ves.  635 ;  where  Sir  Thomas  Clarke,  M.  R.,  observes,  that  the 
Court  dislikes  the  rule  so  much,  as  to  lay  hold  of  any  minute  circumstance  to 
take  a  case  out  of  it;  as,  that  the  thing  given  in  satisfaction  should  be  as  cer- 
tain as  to  the  duration  and  commencement  of  it  as  the  debt,  otherwise,  though 
a  sum  ten  times  larger  be  given  by  the  will,  it  would  not  be  held  a  satisfaction. 
'*  I  myself,"  said  his  Honor,  "  remember  a  case,  before  the  Lord  Chancellor, 
(Hardwicke,)  where  an  old  lady,  indebted  to  a  servant  for  wages,  by  will  gave 
ten  times  as  much  as  she  owed,  or  was  likely  to  owe;  yet,  because  made  pay- 
able in  a  month  after  her  own  death,  so  that  the  servant  might  not  outlive  the 
month,  although  great  odds  the  other  way,  the  Court  laid  hold  of  that."  See, 
also,  Clark  v.  Sewell,  3  Atk.  96;  Haynes  v.  Mica,  1  Bro.  C.  C.  129;  JeacocJc 
V.  Falkener,  1  Bro.  C  C.  295 ;  S.  C,  1  Cox,  37 ;  Adams  v.  Lavender,  1 
M'Cl.  &  Y.,  Exch.  41 ;  Uales  v.  Darell,  3  Beav.  324,  and  cases  there  cited. 

The  presumption  will  also  be  repelled  where  the  legacy  and  debt  are  of  a 
different  nature,  either  with  reference  to  the  subjects  themselves,  or  with 
respect  to  the  interest  given  :  see  Easticood  V.  Vinke,  2  P.  Wms.  614,  where 
it  was  held,  that  as  money  and  lands  were  things  of  a  different  nature,  the  one 
should  not  be  taken  in  satisfaction  of  the  other.  See,  also,  Forsight  v.  Grant, 
1  Ves.  jun.  298 ;  Richardson  v.  Elphinstone,  2  Ves.  jun,  463  ;  Byde  v.  Byde, 
1  Cox,  49  :  Bartlett  v.  Gillard,  3  lluss.  \\^;  Fourdrin  v.  Goicdey,  3  My.  & 


EX     PARTE     PYE. — CHANCEY'S     CASE.  581 

K.  409 ;  Rowe  v.  Rowe,  2  De  Gr.  *&  Sm.  294 ;  Edmunds  v.  Low,  3  r^ooq-i 
K.  &  J.  318.  So,  also,  wliere  the  interest  given  is  of  a  different  nature 
or  not  co-extensive  with  the  debt.  Thus,  a  gift  of  a  residue  of  I'eal  and  per- 
sonal estate  for  life  was  held  not  to  be  a  satisfaction  for  a  sum  of  money  to  be 
laid  out  in  lauds  and  conveyed  to  a  person  in  fee :  Alleyn  v.  AUeyn,  2  Ves. 
37.  So,  also,  where  there  is  a  particular  motive  assigned  for  the  gift,  it  will 
not  be  presumed  to  be  a  satisfaction  for  a  debt :  Mathews  v.  Mathews,  2  Ves. 
635. 

The  presumption  will  not  be  raised  where  the  debt  of  the  testator  was  con- 
tracted suhsequentlj/  to  the  making  of  the  will ;  for  he  could  have  had  no  inten- 
tion of  making  any  satisfaction  for  that  which  was  not  in  existence :  Cranmer's 
case,  2  Salk,  508 ;  Thomas  v.  Bennet,  2  P.  Wms.  343  j  Plunkett  v.  Lewis,  3 
Hare,  330. 

Where  the  legacy  is  contingent  or  uncertain,  whether  it  be  given  upon  the 
happening  of  a  contingency,  as  in  Cromj^ton  v.  Sale,  2  P.  Wras.  553 ;  or  is 
in  itself  of  an  uncertain  or  fluctuating  nature,  as  a  gift  of  the  whole  or  a  part 
of  the  testator's  residuary  estate,  even  though  it  should  prove  greater  in  amount 
than  the  debt,  it  will  not  be  held  to  be  a  satisfaction  of  it :  Devese  v.  Pontet, 
1  Cox,  188;  Barret  v.  Bechford,  1  Ves.  519;  Ladij  Thynne  v.  The  Earl  of 
Glengall,  2  H.  L.  Ca.  154. 

The  result  will  be  the  same,  if  the  debt  itself  is  contingent  or  uncertain,  as 
a  debt  upon  an  open  and  running  account, — for  it  might  not  be  known  to  the 
testator,  whether  he  owed  any  money  to  the  legatee  or  not ;  and  therefore,  it 
could  not  reasonably  be  held  that  he  intended  a  legacy  to  be  in  satisfaction  of 
a  debt  which  he  did  not  know  that  he  owed,  any  more  than  a  legacy  could  be 
held  a  satisfaction  of  a  debt  contracted  after  the  making  of  the  will:  Rawlins 
V.  Powell,  1  P.  Wms.  297;  and  in  Carry.  Eastahrooke,  3  Ves.  561,  Lord 
Alvanley,  M.  R.,  held  that  a  legacy  was  not  a  satisfaction  for  a  negotiable  bill 
of  exchange,  on  the  ground  that  it  was  not  to  be  presumed  that  the  testator 
could  know  whether  the  legatee  had  not,  the  moment  she  received  the  bill, 
indorsed  it  over  to  another  person,  in  which  case  no  debt  would  be  due  to  the 
legatee. 

But  the  presumption  that  a  debt  is  intended  to  be  satisfied  by  a  legacy  will 
not  be  rebutted  by  the  circumstance  that  the  debt  is  liable  to  variation  in 
amount.  Where,  for  instance,  the  debt  was  in  respect  of  deposits  made  with 
the  testator,  the  creditor  drawing  on  him  from  time  to  time  in  respect  of  such 
deposits :  Edmunds  v.  Low,  3  K.  &  J.  318. 

Where  a  debt  by  the  marriage  of  the  creditor  becomes  payable  to  her  hus- 
band, the  presumption  of  satisfaction  by  a  legacy  to  a  larger  amount  having 
been  bequeathed  to  her  by  the  debtor  *will  not  be  rebutted  as  being 
intended  for  a  person  to  whom  the  debt  was  not  due,  because  the  L  -" 
legacy,  subject  to  the  wife's  equity  to  a  settlement,  would  be  payable  to  the 
husband.  See  Edmunds  v.  Low,  3  K.  &  J.  318.  The  remark,  however,  of 
his  Honor  that  as  the  legacy  in  that  case  was  only  £100  the  wife  had  no  equity 


582  SATISFACTION. — ADEMPTION. 


to  a  settlement,  is  not  in  accordance  with  the  authorities.  See  ante,  vol.  1, 
p.  386. 

Where,  as  in  Cliancey's  case,  selected  as  a  leading  authority  upon  this  sub- 
ject, there  is  an  express  direction  in  the  will  for  payment  of  debts  a?ifZ  legacies, 
the  Court  will  infer  that  it  was  the  intention  of  the  testator  that  both  the  debt 
and  the  legacy  should  be  paid  to  the  creditor :  Richardson  v.  Greese,  3  Atk. 
65;  Fleld\.  iMostin,  Dick.  548;  Hales  v.  JDarell,  3  Beav.  324,  332. 

In  Jefferies  v.  Michell,  20  Beav.  15,  the  testator  gave  "  after  payment  of 
his  debts"  certain  legacies,  and  amongst  others  a  legacy  of  £150  to  hisgrand- 
dauo-hter,  and  he  directed  his  executors  "  to  pay  all  his  bequests  only  to  the 
individuals  therein  named."  The  testator  owed  his  grand-daughter  £150.  It 
was  held  by  Sir  John  Romilly,  M.  B.,  that  the  legacy  was  not  a  satisfaction 
of  the  debt.  "  It  is  possible,"  said  his  Honor,  "  that  the  testator  supposed 
that  his  grand-daughter  could  not  take  both  the  debt  and  legacy ;  but  nothing 
is  said  in  the  will ;  on  the  contrary,  there  is  an  express  direction  to  pay  loth 
the  debts  and  the  legacies,  and  the  legacies  are  to  be  paid  'to  the  individuals.' 
The  result  is,  that  if  the  testator  had  a  different  intention,  he  has  failed  to  ex- 
press it,  and  I  therefore  think  that  both  the  debt  and  legacy  are  payable  to  the 

plaintiff." 

But  a  direction  to  pay  debts  alone  is  not  sufficient  to  rebut  the  presumption 
of  satisfaction,  {Edmunds  v.  Low,  8  K.  &  J.  818,  821,)  although  it  may  be 
looked  upon  as  an  ingredient  coupled  with  other  circumstances  to  have  that 
effect.     Rowe  v.  Roice,  2  Be  G.  &  Sm.  297,  298. 

Where  a  parent  gives  a  legacy  to  a  child  to  whom  he  is  indebted.'] — It  ap- 
pears that  a  legacy  given  by  the  will  of  a  parent  to  a  child,  is  not  upon  any 
different  footing  from  that  of  a  legacy  by  any  other  person  as  a  satisfaction  of 
a  debt  not  being  a  portion ;  therefore,  where  a  father  owes  a  mere  debt  to  a 
child,  a  subsequent  legacy  will  not,  in  the  absence  of  intention,  express  or 
implied,  be  considered  as  a  satisfaction  of  the  debt,  unless  it  be  either  equal 
to,  or  greater  than,  the  debt  in  amount,  and  the  presumption  of  satisfaction  be 
not  repelled  by  any  of  those  slight  circumstances  which  will  take  a  bequest  of 
such  amount  to  a  stranger  out  of  the  general  rule  :  Tolson  v.  Collins,  4  Ves. 
483  ;   Stocken  v.  Stocken,  4  Sim.  152. 

The  same  remarks  apply  to  a  legacy  to  a  wife  to  whom  the  *husband 
V''^-^^  is  indebted :  Fowler  v.  Fowler,  3  P.  Wms.  353  •  Wathen  v.  Smith,  4 

Madd.  326. 

Where  a  parent  in  his  lifetime  advances  a  child  to  whom  he  is  mdehted."] — 
Where  however,  a  parent  is  indebted  to  a  child,  and  in  his  lifetime  makes 
an  advancement  to  the  child  upon  marriage,  or  some  other  occasion,  of  a  por- 
tion equal  to  or  exceeding  tlie  debt,  it  will,  prima  facie,  be  considered  a  satis- 
faction ;  and  it  is  immaterial  w.hethcr  the  portion  be  given  in  consideration  of 
natural  love  or  affection,  or  whether  property  be  settled  by  the  other  party  in 
consideration  of  it,  or  whether,  in  the  case  of  a  portion  to  a  daughter,  the 
husband  be  ignorant  of  the  debt.  See  Wood  v.  Briant,  2  Atk.  521 ;  Seed  v. 
Bradford,  1  Ves.  500  ;  Chave  v.  Farrant,  18  Yes.  8. 


EX     PARTE     PYE.  —  CHANCEY'S     CASE.  583 


In  Plunkctt  v.  Lends,  3  Hare,  316,  these  autliorities  were  reviewed  and  re- 
cognized by  Sir  J.  Wigram,  V.  C.     There,  a  trust  fund  to  which  a  father  was 
entitled  for  life,  and  his  son  and  daughter  in  remainder,  was  sold,  and  the 
proceeds,  amounting  to  £11,445,  were  received  by  the  father.     Subsequently, 
on  the  marriage  of  the  daughter,  the  father  settled  £16,000  in  ready  money, 
and  £20,000  payable  six  months  after  his  decease,  besides  land.     It  was  held, 
by  Sir  James  Wigram,  V.  C,  that  the  claim   of  the   daughter  against  the 
father,  in  respect  of  her  share  of  the  proceeds  of  the  trust  fund,  must  be  pre- 
sumed to  be  satisfied  by  the  settlement.     "  In  this  case,"  said  his  Honor 
"  the  existence  of  a  debt  of  ascertained  amount,  and  the  advance  by  the  father 
to  an  amount  far  exceeding  the  amount  of  the  debt,  and  that  on  behalf  of  the 
daughter,  in  a  transaction  to  which  she  was  a  party,  all  concur.    But  it  was  said 
first,  that  in  the  settlement  by  the  father,  distinct  considerations,  (natural  love 
and  afi"ection,)  were  expressed,  and  that  the  expression  of  those  considerations 
excluded  the  satisfaction;  secondly^  that  the  entire  settlement  was  a  purchase 
from  the  husband,  and  that,  as  he  gave  value  for  the  lady's  settled  fortune,  it 
would  not  be  presumed  that  the  whole  intention  of  the  parties  was  not  ex- 
pressed in  the  settlement;  and,  thirdly,  that  the  husband  had  no  notice  of  his 
wife's  rights  in  the  trust  stock,  and  therefore  could  not  be  barred.     In  Wood  v. 
Briant,  (2  Atk.  521,)  the  father  was  administrator  durante  minore  jetate  of  an 
estate  under  which  his  daughter  was  interested  to  an  extent  not  exceedino- 
£500.     On  her  marriage,  the  father  agreed  to  give  his  daughter  £800  as  a 
portion,  and  in  consideration  of  natural  love  and  affection;  and  in  that  case, 
as  in  this,  the  argument  was  founded,  inter  alia,  upon  the  expression  of  con- 
sideration.    Lord  Hardwicke  went  fully  into  the  law  upon  the  broad  principle 
of  satisfaction ;  and,  independently  *of  some  delay,  to  which  he  ad-     ^.^  ..^-, 
verted,  held  it  a  satisfaction.     He  said,  '  There  are  very  ieyf  cases  '-       ''^ 
where  a  father  will  not  be  presumed  to  have   paid  the   debt  he  owes  to  a 
daughter,  when,  in  his  lifetime,  he  gives  her  in  marriage  a  greater  sum  than 
he  owed  her ;  for  it  is  very  unnatural  to  suppose  that  he  would  choose  to  leave 
himself  a  debtor  to  her,  and  subject  to  an  account.'     And  he  expressed  his 
disapprobation  of  Childley  v.  Lee,  (Prec.  Ch.  228,)  in  which  Sir  J.  Trevor 
went  upon  the  ground  that  the  husband  was  ignorant  of  his  wife's  claim.     The 
case  of  Seed  v.  Bradford,  (1  Ves.  500,)  contains  a  very  clear  expression  of 
Sir  John  Strange's  opinion  upon  the  abstract  point,  although  he  fortified  his 
opinion  upon  that  point  by  the  acquiescence  to  which  he  referred.     In  that 
case,  also,  the  husband  appears  not  to  have  known  of  his  wife's  right  until 
after  the  marriage.     In  Chave  v.  Farrant,  (18  Ves.  8,)  the  father,  owing 
£150  to  his  children,  as  executor  of  their  grandfather,  covenanted  in  their 
settlements  to  pay  £1000  each  for  the  portions  of  his  daughters.     It  did  not 
appear  that  the  husbands  knew  of  the  debt.     Sir  W.  Grant  was  clear  upon 
the  point. 

"  The  above  cases,  which  bring  the  law  down  from  Lord  Hardwicke  to  the 
time  of  Sir  W.  Grant,  have,  I  believe,  always  been  considered  as  showing  the 
law  of  the  Court.     They  clearly  decide,  that  neither  the  expression  of  natural 


584  SATISFACTION. — ADEMPTION. 

love  and  affection  as  tlie  reason  of  the  gift,  nor  the  ignorance  of  the  husband 
of  his  wife's  rights,  will  necessarily  prevent  the  application  of  the  doctrine  of 
satisfaction.  And  if  the  acts  and  declarations  of  the  parties,  as  proved  in  evi- 
dence, are  to  be  taken  into  account  in  this  case,  (as  in  some  of  the  cases  they 
have  been,)  it  is  impossible  to  say  they  do  not, -in  the  clearest  manner,  confirm 
the  conclusion  to  which,  without  those  acts  and  declarations,  I  should  come. 

"I  must  not,  however,  be  understood  as  intimating  an  opinion  that  the  ex- 
pression of  natural  love  and  affection,  as  the  consideration  of  a  portion  given 
by  a  parent  on  the  marriage  of  a  child,  may  not,  in  any  case,  be  entitled 
to  weight.  In  tlie  case  of  a  portion  being  the  exact  amount  of  the  parent's 
debt  to  his  child,  perhaps  it  might  be  material,  at  least  in  conjiinction  with 
other  circumstances;  for  it  might  be  said,  that  natural  love  and  affection  could 
not  be  the  motive  for  discharging  a  legal  or  equitable  obligation ;  but  that 
reasoning  can  have  little  weight  where  the  father,  as  in  this  case,  gives  a  por- 
tion so  far  exceeding  his  liability.  There  is  here  ample  to  satisfy  the  natural 
love  and  affection,  without  excluding  the  presumption  that  the  debt  was  in- 
tended to  be  satisfied  also. 

"  With  respect  to  the  other  point  relied  upon  by  the  plaintiff,  that  the  set- 
r*o  <r>-i  tlement  must  be  construed  *as  a  purchase  by  the  husband,  I  cannot 
comprehend  how  that  bears  upon  the  question.  It  is  the  advance  by 
the  father,  which,  by  presumption  of  law,  satisfies  his  liabilities;  and  if  that 
advance  simpliciter  would  discharge  him,  I  cannot  understand  the  argument 
which  supposes  that  the  advance  will  lose  its  operation  in  the  father's  favor, 
because  he  obtains  for  the  daughter  the  additional  benefit  of  a  settlement  by 
her  husband.  I  should  have  thought  the  argument  in  favor  of  satisfaction 
rather  a  fortiori  from  such  circumstances.  No  case  was  produced  sanctioning 
such  an  argument;  and  I  think  the  observations  of  the  Vice-Chancellor,  5 
Sim.  .314,  315,  point  strongly  the  other  way.  He  says,  that,  where  the  hus- 
band, in  consideration  of  his  wife's  portion,  settles  his  own  estate,  that  is  the 
same  thing  quoad  satisfaction  as  if  her  fortune  were  settled."  And  his  Honor, 
after  commenting  upon  Wharton  v.  Lord  Durham,  5  Sim.  297;  3  My.  &  K. 
472 ;  10  Bligh,  N.  S.  526 ;  3  C.  &  F.  146,  adds,  "  It  is  the  absence  of  expres- 
sion, and  that  only,  which  raises  the  question  in  any  of  the  cases.  I  consider 
the  presumption  of  law  to  be,  that  the  settlement  would  satisfy  the  debt,  and 
that  presumption  being  in  this  case  unopposed  by  any  evidence  whatever,  be- 
comes conclusive."     See  also  nurdingham  v.   Thomas,  2  Drew.  353. 

In  the  same  case,  his  Honor  held,  advances  made  by  the  father,  to  his  sou 
simpliciter,  not  to  be  a  purchase  or  satisfaction  of  the  claim  of  the  son  to  the 
proceeds  of  a  trust  fund  belonging  to  the  son,  possessed  by  the  father  after 
such  advances.     See  3  Hare,  330. 

The  presumption  of  satisfaction  can  only  arise  where  the  person  making  the 
payment  is  himself  the  party  bound  to  pay,  or  is  the  owner  of  the  estate 
charged  with  the  payment:  Samuel  v.  Ward,  22  Beav.  347;  and  see  Dong- 
las  V.  Willci^,  7  Hare,  328. 


EX     PARTE     PYE.  —  CHANCEY'S     CASE.  585 

A  debt  due  to  a  man  will  not  be  satisfied  by  a  legacy  to  liis  wife  :  Hall  v. 
Hill,  1  D.  &  War.  94  ;  1  C.  &  L.  120. 

Extrinsic  Evidence.'] — Where  the  presumption  arises  merely  from  the  fact 
of  a  legacy  to  a  creditor,  being  equal  to  or  greater  than  the  amount  of  the 
debt,  it  would  appear,  upon  principle,  that  evidence  ought  to  be  admitted  to 
rebut  the  presumption  ;  and  if  so,  evidence  may,  on  the  other  hand,  be  admitted 
to  fortify  it :  Plunkett  v.  Leivis,  3  Hare,  361.  However,  in  Fowler  v.  Fowler, 
3  P.  Wms.  353,  Lord  Talbot  refused  to  admit  parol  evidence  j  and  this  case 
appears  to  be  approved  of  by  Sir  Edward  Sugden,  in  Hall  v.  Hill.  See  1 
D.  &  W.  121 ;  1  C.  &  L.  147.  It  is,  however,  submitted,  that  the  evidence 
ought  to  have  been  admitted  in  that  case,  since,  as  the  case  is  reported,  it 
would  merely  have  been  admitted  for  the  purpose  of  ^rebutting  a  pre-  r:j;o  i  j-i 
sumption  of  law,  not  to  contradict  the  intention  of  the  testator  as  ap- 
pearing by  the  will.  If,  indeed.  Lord  Talbot  considered  that  the  intention  of 
the  testator  appeared  on  the  face  of  the  will,  the  evidence  was  rightly  rejected. 

In  Wallace  v.  Pomfret,  11  Ves.  542,  Sir  Samuel  liomilly,  rightly  admitting 
that  evidence  might  be  received  to  rebut  the  presumption  of  the  satisfaction 
of  a  debt  by  a  legacy,  where  there  was  no  expression  in  the  will  showing  the 
intention,  rightly  argued  also,  that  there  was  no  instance  of  admitting  evi- 
dence where  the  testator  has  shown  his  intention  by  words ;  Lord  Eldon, 
nevertheless,  admitted  evidence  to  beat  down,  not  a  mere  presumption  of  law, 
"but,"  as  he  says,  ''the  fair  inference  from  the  written  context."  This  de- 
cision, however,  is  contrary  to  principle,  and  has  been  strongly  disapproved  of 
in  Hall  v.  HiU,  1  D.  &  War.  122  ;  1  C-  &  L.  147;  in  which  case,  as  the  pre- 
sumption of  satisfaction  did  not  arise  on  the  face  of  the  will.  Lord  Chancellor 
Sugden  refused  to  admit  parol  evidence  of  the  testator's  declaration,  showing 
that  he  intended  the  legacy  as  a  satisfaction. 


When  a  testator,  by  will,  directs  payment  and  not  a  legacy;  Warcl^. 
the  payment  of  money  to  his  creditor,  Coffield,  1  Dev.  Eq.  108  ;  Perry  v. 
it  may  either  be  intended  as  a  satis-  Maxivell,  2  Id.  488. 
faction  of  the  debt,  or  as  a  gratuitous  But  to  raise  this  presumption  that 
benefit.  If  put  in  the  form  ordinarily  a  legacy  to  a  creditor,  is  intended  as  a 
employed  for  a  gift  or  legacy,  it  might  mere  payment  of  the  debt,  the  legacy 
seem  prima  facie  to  have  the  latter  must  in  all  points  and  particulars,  be 
character,  and  to  be  what  it  appears,  an  exact  fulfilment  of  the  obligation 
a  gratuity,  and  not  a  payment.  But  imposed  by  the  debt.  It  may  indeed 
it  is,  notwithstanding,  a  settled  prin-  exceed  the  debt  in  value,  for  a  pay- 
ciple,  which,  though  seldom  applied,  ment  in  excess  is  not  the  less  a  pay- 
is  not  the  less  well  established,  that  if  ment,  but  it  must  be  the  same  in  kind 
the  bequest  correspond  in  all  respects  and  in  time  of  payment ;  and  the  efi"ect 
with  the  debt;  it  will  be  ^^rtmayacie  a  of  a  variance  in  these  or  other  ma- 


586 


SATISFACTION. — ADEMPTION. 


terial  particulars,  canuot  be  overcome 
by  showing  that  it  is  greater  iu  value. 
"  A  legacy  is  not  presumed  to  be  a 
satisfaction,  if  there  be  a  difference  in 
the  nature  of  the  debt  and  legacy,  a 
difference  in  the  times  at  which  they 
are  payable  respectively,  or  if  one  be 
certain  and   absolute,  and  the  other 
contingent;"  Dey  v.  Williams,  2  Dev. 
&  Bat.  Eq.  66.     Thus  a  legacy  pay- 
able on  a  contingency,  or  at  a  future 
day,  will  not  be  a  satisfaction  of  a 
debt  certain  in  amount,  and  due  at 
the  death  of  the  testator;  Bi/rne  v. 
Bi/rne,  3  S.  &  R.  54;    Van  Rljjcr  v. 
Van  Riper,  1  Green,  Ch.  1.      But 
there  would  seem  no  reason  why  an 
unliquidated   account   should  not  be 
discharged  by  the  bequest  of  a  sum 
certain  of  greater  value,  (  Williams  v. 
Crari/,  8   Cowen,    246,)   unless   the 
debt  be  so  uncertain  as  to  justify  an 
inference  that  the  testator  could  not 
have   intended   to  pay  a  demand  of 
which  he  did  not  know  the  amount. 
But  when  no  such  exceptions  inter- 
vene, the  rule  which  requires  identity 
between  the  debt  and  the  bequest  is 
peremptory.     A   bequest   of  specific 
chattels,  or  a  devise  of  real  estate,  will 
not  enure  as  a  discharge  of  a  debt 
payable  in  money;  Cloud  v.  Clinken- 
leard's   Ex'rs,  8    B.    Monroe,   397; 
iSmifh   V.    Marshall,    1    Hoot,    159; 
Pai'triJge  s  Adm'r   v.   Partridge,  2 
Har.  &  Johnson,  63.    It  seems,  more- 
over, that  unless  the  debt  and  legacy 
are  in  the  same  right,  there  will  be 
no  extinguishment  of  the  one  by  the 
other,  and  that  a  legacy  to  a  wife  will 
not  enure  as  a  satisfiiction  c^f  a  debt 
due  to  her  husband;  Malheraii  s  Ex  rs 
V.  Gillespie,  12  Wend.  349.     And  it 
has  been  held,  that  a  debt  charged  on 
the  land,  and  not  on  the  person  of  the 


testator,  will  not  be  extinguished  by 
a  bequest  to  the  creditor;  Caldicell  v. 
Kinkaid,  1  B.  Monroe,  228.  But  it 
may  be  presumed,  that  the  operation 
of  a  legacy  as  a  satisfaction  of  a  debt, 
will  not  be  defeated  by  the  postpone- 
ment of  the  period  at  which  the  legacy 
is  payable,  when  the  delay  arises  from 
a  rule  of  law,  and  not  from  the  direc- 
tion of  the  testator;  Guignard  v. 
Mayrant,  4  Dessaussure,  614. 

From  the  uncertain  nature  of  this 
presumption,  slight  circumstances  are 
sufficient  to  rebut  it,  and  it  has  been 
held,  that  when  the  testator  directs 
that  his  debts  shall  be  paid,  a  legacy 
to  a  creditor  will  not  be  considered  as 
pa3nuent;  Strong  v.  Williams,  12 
Mass.  391 ;  Perri/  v.  Maxwell,  2  Dev. 
Eq.  488,  499 ;  Williams  v.  Crary,  4 
Wend.  443,  449 ;  Byrne  v.  Byrne,  3 
S.  &  R.  60  ;  Van  Riper  v.  Van  Riper. 
Where  the  debt  accrues  after  the  gift 
of  the  legacy,  there  is  obviously  no 
room  for  a  presumption  that  the  legacy 
was  intended  as  a  satisfaction  of  the 
debt.  And  it  seems  to  have  been 
thought  in  Williams  v.  Crary,  that 
where  a  demand  is  for  services  ren- 
dered, partly  before  and  partly  after 
the  bequest  is  given,  it  can  only  be 
regarded  as  a  payment  of  those  ren- 
dered before. 

The  circumstances  necessary  to 
make  a  bequest  of  a  legacy,  a  pay- 
ment of  a  debt,  were  summed  up 
with  much  precision  in  Edelens  Exe- 
cutors V.  Dents'  Administrator,  2  Gill 
&  Johnson,  185,  where  the  court  de- 
cided, that  a  debt  due  at  the  death 
of  the  testator,  was  not  extinguished 
by  the  gift  of  a  pecuniary  legacy  to 
a  greater  amount,  but  payable  at  a 
future  day,  and  coupled  with  an  ex- 
press charge  for  the  payment  of  debts 


EX     PAKTE     PYE.  —  CHANCEY'S     CASE. 


587 


on  the  whole  of  the  estate.  ''  The 
general  rule  of  law,"  said  the  court, 
"  that  a  pecuniary  legacy,  of  an  equal 
or  a  larger  amount,  is  a  satisfaction  of 
a  debt,  is  undeniable  ;  but  it  is  not  an 
unbending  rule,  and  not  being  much 
favored,  is  made  to  yield  to  slight  cir- 
cumstances to  be  found  in  the  will ; 
such  as  an  express  devise  for  the  pay- 
ment of  debts  and  legacies,  the  crea- 
tion of  a  fund  for  the  payment  of  debts 
and  a  charge  of  the  legacies  on  that 
fund ;  or  if  the  legacy  be  uncertain,  and 
made  to  depend  upon  a  contingency; 
(2  Mad.  Ch.  42,  43,  44;  3  Atk.  65  ;) 
or  if  the  payment  of  the  legacy  be  post- 
poned by  the  will  to  a  time  subsequent 
to  that  at  which  the  debt  is  due  and 
payable,  or  if  the  debt  be  due  at  the 
time  of  the  testator's  death,  and  the 
legacy  be  not  made  payable  immedi- 
ately, but  at  some  future  time;  2  Mad. 
44;  3  Atk.  96;  1  Brown,  Ch.  Rep. 
295.  In  this  case,  with  the  excep- 
tion that  the  legacy  is  not  made  to 
depend  upon  a  contingency,  all  these 
circumstances  concur.  The  debt  was 
subsisting  and  due  before  and  at  the 
time  of  the  testator's  death ;  there  is 
an  express  devise  for  the  payment  of 
debts  and  legacies,  the  creation  of  a 
fund  charged  with  the  payment  of 
debts  and  legacies,  and  the  legacy  in 
question  is  not  made  payable  imme- 
diately on  the  death  of  the  testator, 
but  with  the  other  legacies,  is  to  be 
paid  out  of  the  proceeds  of  sales  of 
the  real  and  personal  property,  and 
might  in  part,  at  least,  not  be  paid 
until  long  after  the  executors  by  law 
were  bound  to  pay  the  debts,  the  real 
property  being  directed  to  be  sold  at 
a  credit  of  six,  twelve,  and  eighteen 
months  from  the  time  of  sale." 
The  exceptions  to  the  rule  are  in 


truth  so  numerous,  as  practically  to 
destroy  the  rule  itself.  And  in  Clarh 
v.  BogarduSf  12  Wend.  67,  the  true 
rule  was  said  to  be,  that  a  legacy  is 
not  a  satisfaction  of  a  debt,  unless 
such  appears  to  have  been  the  inten- 
tion with  which  it  was  given,  and  not 
that  a  legacy  equal  to  or  greater  than 
the  debt,  is  ^  prima  facie  satisfaction. 
Most  of  the  points  above  stated, 
arose  and  were  determined  in  the  case 
of  Strong  v.  Williams,  12  Mass.  391. 
The  testator  gave  a  bond  to  his  house- 
keeper, conditioned  for  the  payment 
of  three  hundred  and  thirty-three 
dollars,  within  six  months  after  his 
decease,  and  also  a  written  promise  to 
pay  her  twenty  dollars  annually,  and 
provide  her  with  clothing  and  neces- 
saries so  long  as  she  continued  in  his 
family.  He  afterwards  made  his  will, 
by  which  he  bequeathed  her,  in  con- 
sideration of  long  and  meritorious  ser- 
vices, a  pecuniary  legacy  of  three 
hundred  dollars,  together  with  his 
household  furniture  and  other  chat- 
tels, valued  at  seven  hundred  and 
forty-five  dollars,  and  devised  the  re- 
sidue of  his  estate  to  a  collegiate  in- 
stitution, subject  to  the  payment  of 
his  debts  and  legacies.  After  his 
death,  suit  was  brought  on  the  bond 
against  his  executors,  who  set  up  the 
legacies  in  the  will  as  a  satisfaction. 
But  it  was  held  by  the  court,  that  as 
the  pecuniary  legacy  was  less  in 
amount  than  the  debt,  and  the  spe- 
cific hequest  different  in  kind,  neither 
could  operate  as  a  satisfaction  by  mere 
legal  intendment,  in  the  absence  of 
evidence  that  such  was  the  testator's 
intention.  And  it  was  further  held, 
that  even  if  a  presumption  of  satis- 
faction would  otherwise  have  arisen, 
it  would  have  been  rebutted  by  the 


SATISFACTION. — ADEMPTION. 


direction  for  the  payment  of  debts 
and  legacies.  "The  general  rule," 
said  Putnam,  J.,  "anciently  estab- 
lished in  chancery  was,  that,  when  a 
testator,  being  indebted,  gave  to  his 
creditor  a  legacy  equal  to,  or  exceed- 
ing, the  amount  of  his  debt,  the  lega- 
cy should  be  considered  as  a  satisfac- 
tion of  the  debt.  The  rule  has  been 
acknowledged  in  later  cases,  but  with 
marks  of  disapprobation,  and  a  dispo- 
sition to  restrain  its  operation  in  all 
cases  where,  from  circumstances  to  be 
collected  from  the  will,  it  might  be  in- 
ferred that  the  testator  had  a  different 
intention ;  Haynes  v.  Mico,  1  Bro. 
Cha.  Ca.  131.  Thus,  where  a  testa- 
tor left  a  sufficient  estate,  it  was  de- 
termined that  he  was  to  be  presumed 
to  have  been  kind  as  well  as  just.  So, 
if  the  legacy  was  of  a  less  sum  than 
the  debt,  or  of  a  different  nature,  or 
upon  conditions,  or  not  equally  bene- 
ficial in  some  one  particular,  although 
more  so  in  another. 

"All  the  cases  agree  that  the  inten- 
tion of  the  testator  ought  to  prevail ; 
and  that,  prima  facie  at  least,  what- 
ever is  given  in  a  will  is  to  be  intend- 
ed as  a  bounty.  But,  by  later  cases, 
the  courts  have  not  been  disposed  to 
understand  the  testator  as  meaning  to 
pay  a  debt,  when  he  declares  that  he 
makes  a  gift ;  unless  the  circumstan- 
ces of  the  case  should  lead  to  a  dif- 
ferent conclusion. 

"Thus,  in  the  case  cited  for  the 
plaintiff,  {Brown  v.  Dawson,  2  Vern. 
498,)  where  the  wife  joined  in  the 
Bale  of  her  jointure,  and  the  husband 
gave  her  a  note  of  7/.  lO.s.  per  annum 
for  her  life ;  and  afterwards,  upon  an- 
other such  sale,  he  gave  her  a  bond 
for  G^.  lO.s.  per  annum  for  her  life; 
and  he  afterwards  made  his  will,  and 


gave  her  14?.  per  annum  for  life ;  the 
legacy  was  adjudged  to  be  a  satisfac- 
tion for  the  note  and  bond.  Here  it 
will  be  perceived,  that  the  annuity 
given  in  the  will  amounted  exactly 
to  the  sum  secured  by  the  bond  and 
note ;  and  the  presumption  of  satisfac- 
tion proceeded  upon  the  similitude  of 
the  legacy  to  the  debt.  2  Fonbl.  380, 
■in  nods.  So,  in  the  case  of  Fowler  v. 
Folder,  3  P.  Wms.  353,  the  general 
rule  was  applied.  There  the  husband, 
being  indebted  to  the  wife  for  arrears 
due  by  the  marriage  settlement,  gave 
her  a  larger  legacy  by  the  will ;  and 
it  was  held  a  satisfaction  of  the  debt. 
But  it  is  to  be  observed,  that  Lord 
Chancellor  Talbot,  expressed  great 
dissatisfaction  with  the  rule  ;  and  it 
does  not  appear,  that  any  circumstan- 
ces could  be  found  to  take  the  case 
out  of  its  general  application.  In 
that  case  the  court  refused  parol  evi- 
dence, to  prove  that  the  testator  in- 
tended both  should  be  paid. 

"  But  cases  of  this  nature  must  de- 
pend upon  the  circumstances;  and 
there  must  be  a  strong  presumption, 
to  induce  a  belief  that  the  testator  in- 
tended the  legacy  as  a  payment,  and 
not  as  a  bounty.  2  Fonbl.  332. 
Thus,  where  the  testatrix  had  given 
her  servant  a  bond  for  20/.  free  of 
taxes  for  her  life,  and  afterwards  made 
her  will  and  gave  her  servant  20/. 
per  annum,  payable  half  yearly,  but 
said  nothing  about  the  taxes,  the 
court  held  that  both  should  be  paid. 
Atkinson  v.  Webb,  2  Vernon,  478. 
Here  the  legacy,  being  not  quite  so 
beneficial  as  the  debt,  did  not  raise  a 
presumption  that  it  was  intended  as  a 
payment. 

"  So,   where    the    testator,   having 
sufficient  assets,  and  having  manifest- 


EX     PARTE     PYE. 


•CHANCEY   S     CASE. 


589 


ed  great  kindness  for  the  legatee,  gave 
a  legacy  of  a  greater  amount  than  he 
owed,  it  was  holden  by  Lord  Chancel- 
lor Cowper,  that  the  testator  might  be 
presumed  to  be  kind  as  well  as  just; 
and  he  decreed  the  payment  of  the 
legacy  as  well  as  the  debt ;  Cuthhert 
V.  Peacock,  1  Salk.  155.  It  has  been 
holden,  that  a  legacy  for  a  less  sum 
than  the  debt  shall  never  be  taken  as 
satisfaction,  (1  Salk.  508 ;)  and  that 
specific  thinijs  devised  are  never  to  be 
considered  as  satisfaction  of  a  debt, 
unless  so  expressed;  2  Eq.  C.  Abr., 
title,  Devises,  pi,  21,  cited  Bac.  Abr., 
Legacies,  D. 

*'  So  the  circumstance,  where  the 
testator  had  devised  ^  that  all  his  debts 
and  legacies  should  be  paid,'  was 
holden  sufficient  to  take  the  case  out 
of  the  general  rule ;  as,  where  the  tes- 
tator, indebted  to  his  maid  servant 
100?.  hy  bond  for  wages,  afterwards 
gave  her  500?.  Lord  Chancellor  King 
decreed  that  both  should  be  paid,  and 
as  the  testator  had  made  provision  for 
the  payment  of  his  debts ;  1  P.  Wms. 
408,  409,  vide  note. 

"  So,  where  it  appeared,  that  the 
legatee  bad  lived  with  the  testatrix  as 
a  servant  for  twenty  or  thirty  years, 
and  she  had  given  her  a  bond  for 
260?.,  and,  in  one  month  afterwards, 
she  made  her  will  and  gave  her  500?. ; 
and,  in  another  clause,  she  gave  the 
rest  of  her  servants  5?.  a  piece,  but 
not  to  Jane  Greese,  the  legatee;  'be- 
cause,' said  the  testatrix,  '  I  have 
done  well  for  her  before;'  and  she 
also  made  provision  for  her  debts  and 
legacies.  Lord  Hardwicke  thought 
the  circumstances  above  stated  took 
the  case  out  of  the  general  rule,  and 
decreed  the  legacy  to  be  no  satisfac- 
tion   for    the    debt;    Richardson   v. 


Greese,  3  Atk.  65  ;  Nichols  v.  Judson, 
S.  P.,  2  Atk.  301 ;  Clark  v.  Sewall, 
S.  P.,  3  Atk.  97. 

"  So,  where  the  testator  was  in- 
debted for  goods  on  an  open  account, 
a  legacy  for  a  larger  sum  was  not  held 
a  satisfaction,  because  he  might  not 
know  whether  he  was  indebted  or  not : 
and,  therefore,  no  presumption  was  to 
arise,  that  he  intended  merely  to  pay 
a  debt;  1  P.  Wms.  299;  Powell's  case, 
S.  P.,  10  Mod.  201. 

"  In  the  case  at  bar,  the  considera- 
tion for  the  legacy  appears  from  the 
will  to  have  been  for  the  services  of 
the  legatee.  A  presumption  that  the 
legacy  was  intended  to  be  a  satisfac- 
tion of  the  bond,  also,  must  rest  on 
the  fact,  that  the  bond  was  given  for 
the  same  services ;  of  which  fact  there 
is  no  evidence  before  us.  It  may 
have  been  for  a  different  cause.  We 
can  only  presume  that  it  was  for  a 
lawful  one, 

"  It  'appears,  also,  from  the  will, 
that  the  testator  intended  his  debts 
and  legacies  should  be  paid,  before 
his  residuary  legatees  should  take 
anything.  The  pecuniary  legacy  to 
the  plaintiff,  also,  is  not  so  much  as 
the  debt;  and,  therefore,  cannot  be 
considered  as  a  payment  of  it.  Neither 
is  there  any  declaration  of  the  testa- 
tor, that  the  specific  articles  given 
should  be  considered  as  a  satisfaction 
of  the  debt.  It  appears,  also,  that 
there  are  sufficient  assets. 

"  From  a  consideration  of  the  prin- 
ciples and  decisions  applicable  to  this 
case,  we  are,  therefore,  all  of  opinion 
that  the  plaintiff  ought  to  recover." 

The  whole  question  was  reviewed 
in  Eaton  v.  Benton,  2  Hill,  576, 
where  the  existence  of  the  rule  that 
a   legacy   of    the   same   nature,  and 


590 


SATISFACTION. 


■ADEMPTION. 


equal  or  greater  value  is  a  satisfac- 
tion, was  fully  recognized,  although 
its  propriety  was  questioned,  and  it 
was  held  not  to  applj'  when  the  testa- 
mentary provision  is  either  different 
in  kind,  or  less  in  amount.  It  was, 
however,  admitted  that  there  can  be 
no  recovery  against  executors  on  the 
footing  of  a  debt,  where  it  appears 
either  that  the  contract  put  in  suit 
made  provision  for  a  testamentary 
compensation,  or  where  the  bequest 
has  been  expressly  given  in  satisfac- 
tion by  the  testator,  and  accepted  by 
the  legatee.  And  the  law  was  held 
the  same  way  by  the  Supreme  Court 
of  Vermont,  in  Fitch  v.  PecMam,  16 
Vermont,  150. 

The  intention  of  the  testator,  as  ac- 
tually expressed  in  the  will,  must 
govern  in  all  casesj  and  where  it  ap- 
pears that  a  devise,  or  bequest  of  any 
kind,  was  meant  to  be  in  satisfaction 
of  a  debt,  the  donee  will  not  be  per- 
mitted to  claim  both  the  debt  and  the 
bequest.  Thus,  where  the  testator 
divided  his  real  estate  between  his 
two  sons,  and  charged  all  the  debts 
due  in  the  state  where  he  was  domi- 
ciled on  the  share  of  one,  it  was  held 
that  a  debt  due  the  other,  who  resided 
out  of  the  state,  could  not  be  enforced 
as  against  the  property  given  to  his 
brother;  Ward  v.  Coffield,  1  Deve- 
reux.  Equity,  108.  And  where  the 
words  of  the  will  arc  such  as  to  show 
that  the  testator  meant  a  disposition 
in  favor  of  a  creditor,  as  a  statement 
and  satisfaction  of  a  balance  of  ac- 
counts between  them,  the  creditor 
will  be  compelled,  cither  to  take  un- 
der the  will,  or  against  it,  and  cannot 
claim  for  a  legacy  in  addition  to  his 
debt.  Thus,  where  a  will  contained 
a  clause,  directing  that   a  bond  for 


§4000  should  be  given  up  and  cancel- 
led, on  the  payment  of  81600,  it  was 
decided  that,  as  tlic  wording  of  the 
clause,  and  the  declarations  of  the 
testatrix,  as  given  in  evidence,  showed 
that  her  object  was  to  state  the  bal- 
ance of  accounts  between  herself  and 
the  obligor,  the  bond  might  be  set  off 
asainst  a  demand  for  services  render- 
ed  in  her  lifetime,  although  the  $1600 
had  been  paid  by  him,  and  the  bond 
cancelled  by  the  executors,  as  directed 
by  the  will ;  Williams  v.  Crary,  5 
Cowen,  368 ;  8  Cowen,  246;  4  Wend. 
443. 

In  Eaton  v.  Benton,  the  court 
questioned  the  course  adopted  in 
many  of  the  cases,  in  admitting  de- 
clarations of  the  testator  in  evidence 
to  show  the  intention  with  which  the 
legacy  was  given.  It  would,  however, 
appear  as  to  this  point,  that  the  cases 
when  properly  understood,  do  not 
sanction  the  admission  of  such  evi- 
dence, unless  the  debt  and  legacy  are 
such  in  themselves  as  to  give  rise  to 
an  equitable  presumption,  that  the 
one  was  intended  as  a  satisfaction  of 
the  other,  when  the  declarations  of 
the  testator  are  undoubtedly  admissi- 
ble, both  to  rebut  and  fortify  this  pre- 
sumption, under  the  general  principle 
that  parol  evidence  is  admissible  to 
control  inferences  raised  by  equitable 
construction,  and  not  founded  on 
actual  expression  ;  Brady  v.  Cuhitt, 
1  Douglass,  30,  39 ;  Jones  v.  Mason, 

5  Randolph,  577;  Zcigler  v.  Eckerf, 

6  Barr,  13 ;  Sims  v.  Sims,  2  Stock- 
ton, Ch.  158,  168. 

The  bequest  of  a  legacy  by  a  cre- 
ditor to  a  debtor,  gives  rise  to  a  pre- 
sumption different  in  degree  and 
operation,  rather  than  kind,  from 
that   which    arises   where    a    debtor 


EX     PARTE     PYE.  —  CHANCEY    S     CASE. 


591 


makes  a  bequest  to  a  creditor.  In  the 
latter  case  the  presumption  is,  that 
the  debtor  would  not  have  left  a 
debt  unpaid,  in  order  to  make  a  gift, 
and  in  the  former  that  money  would 
not  have  been  given  with  one  hand, 
if  there  were  an  intention  to  demand 
it  back  with  the  other.  Both  pre- 
sumptions might  have  been  thought 
equally  strong,  or  equally  inconclu- 
sive, but  it  has  been  held  that  while 
that  which  treats  a  legacy  as  a  pay- 
ment, rather  than  a  gratuity,  will  be 
raised  by  construction  of  law  in  cases 
suited  to  its  operation,  the  presump- 
tion of  the  forgiveness  of  a  debt  from 
the  gift  of  a  bequest,  must  be  sup- 
ported, in  every  instance,  by  some  ad- 
ditional circumstance  either  found  in 
the  will,  or  extraneous  to  it ;  Clarke 
V.  Bogardus,  2  Edwards,  387;  12 
Wend.  67;  Stagg\.  Beekman,  2  Ed- 
wards, 89.  In  this  case  the  court 
cited,  and  relied  on  that  of  Ricketts 
V.  Livingston,  2  Johnson's  Cases,  98, 
where  it  was  said  that  '^  a  legacy  to  a 
debtor  does  not  release  or  extinguish 
the  debt,  unless  such  an  intention  is 
apparent  on  the  face  of  the  will."  In 
Pennsylvania,  however,  it  has  been 
decided  that,  although  to  prove  the 
forgiveness  of  a  debt,  there  must  be 
something  more  than  the  gift  of  a 
legacy,  yet  that  this  may  be  found  in 
the  declarations  of  the  testator,  or 
other  extraneous  facts  or  circumstan- 
ces, and  need  not  necessarily  appear 
in  the  will  itself.  In  Zetglcr  v.  Eckert 
C  Barr,  13,  the  question  wag  whether 
in  a  suit  brought  by  executors  for  the 
recovery  of  a  debt,  the  declarations  of 
the  testator  could  be  given  in  evi- 
dence, to  show  that  the  gift  of  a 
legacy  to  the  debtor,  was  intended  as 
a  forgiveness  of  the  debt.    It  was  held 


by  Gribson,  C.  J.,  who  delivered  the 
opinion  of  the  court,  that  as  the  ques- 
tion arose  under  the  jurisprudence  of 
Pennsylvania,  it  was  to  be  considered 
as  if  it  had  arisen  on  a  bill  in  equity 
against  the  executor  to  compel  the 
payment  of  the  legacy  and  an  answer 
by  them  setting  up  the  debt  as  de- 
fence. And  it  was  said  that,  as  under 
these  circumstances,  the  question 
would  have  been  as  to  whether  the 
testator  meant  that  the  debt  should 
defeat  the  legacy,  his  declarations 
would  have  been  admissible  in  evi- 
dence to  rebut  the  defence.  ''Parol 
evidence,"  said  the  Chief  Justice,  "  is 
not  admissible  to  control  a  will.  Such 
is  the  principle  of  Tufnel  v.  Constable, 
8  Simon,  69 ;  and  Doyle  v.  Blake,  2 
Scho.  &  Lef.  240.  Nor  to  raise,  but 
only  to  rebut  an  equity;  and  such  was 
the  rule  in  Fordyce  v.  Willes,  3  Br.  C. 
C.  377;  Freemantle  v.  Banks,  5  Yes. 
79;  and  3Ionck  v.  Lord  Monck,  1 
Ball  &  Beatty,  298.  But  it  certainly 
may  be  used  by  an  executor,  provided 
for  by  a  legacy,  to  rebut  the  equity 
of  the  next  of  kin ;  or  by  the  next  of 
kin,  to  repel  the  rebutting  evidence 
of  the  executor.  A  list  of  authorities 
for  this,  which  it  would  be  tedious  to 
repeat,  is  to  be  found  in  the  notes  to 
Ste2:)}ienson  v.  Hcathcote,  1  Eden,  Rep, 
40,  41.  In  like  manner,  parol  evi- 
dence was  received  in  Monck  v.  Jjord 
Monck,  to  fortify  a  presumption  of 
ademption.  For  these  purposes,  it  is 
settled  that  parol  evidence  of  the  tes- 
tator's declarations,  before,  at,  and 
after  the  publication  of  the  will,  is 
competent;  and  how  stands  the  case 
on  this  record  ?  We  are  on  a  plea  to  an 
action  on  a  bond,  it  is  true ;  but  if  the 
debt  has  been  equitably  discharged, 
a  chancellor  would  enjoin  the  exeeu- 


592 


SATISFACTION. 


■ADEMPTION. 


tors  as  readily  as  lie  would  decree 
against  them  on  a  bill  for  the  legacy. 
Indeed  the  case  of  Aston  v.  Pi/e,  5 
Ves.  350,  in  note,  was  an  action  at 
law  on  a  note  indorsed,  '  Henry  Pyc 
pays  no  interest,  nor  shall  I  even  take 
the  principal  unless  greatly  distress- 
ed;' and  this  endorsement,  though 
not  a  testamentary  act,  was  held  by 
the  Common  Pleas,  to  which  the  case 
had  been  sent  by  the  Master  of  the 
Kolls  for  a  trial  at  law,  to  be  a  dis- 
charge. In  Byrne  v.  Godfrey,  4  Ves. 
9,  Lord  Loughborough  expressed  some- 
thing like  dissatisfaction  at  the  deci- 
sion of  that  case;  but  in  Eden  v. 
Smith,  5  Ves.  354,  he  expressed  his 
concurrence.  But  to  say  no  more  of 
the  question  at  law,  what  would  be 
the  defence  to  a  bill  in  the  present 
case  ?  The  legacy,  purporting  to  be 
a  benefit  to  the  legatee,  would  be  de- 
mandable  in  the  first  instance;  and  to 
encounter  it,  the  executors  would  be 
driven  to  the  bonds,  which  would  not, 
prima  facie,  appear  to  be  discharged 
by  the  will.  But  the  presumption 
that  no  release  was  intended  when  a 
debt  stands  against  a  legacy,  may,  like 
any  other  presuraptiou,  be  rebutted 
by  proof  arising  either  on  the  face  of 
the  will,  or  dehors.  It  is  not  adduced 
to  control  the  will,  but  to  rebut  a  pre- 
sumption from  matter  extrinsic  to  it; 
and  its  competency  to  do  so  is  estab- 
lished, not  only  by  the  cases  I  have 
quoted  for  the  general  principle,  but 
particularly  by  Eden  v.  Smith,  to 
which  1  have  referred  for  Lord  Lough- 
borough's opinion  of  Aston  v.  Eye; 
and  which,  if  it  be  law,  rules  the  very 
point  before  us.  A  father,  who  had 
taken  two  bonds  from  his  daughter's 
husband,  for  money  lent,  said  in  a 
letter  to  the  husband's  mother,  that 


the  debt  was  forgiven,  and  expressed 
the  same  thing  to  others,  whose  testi- 
mony was  corroborated  by  cash  ac- 
counts in  the  testator's  hand-writing; 
and  the  chancellor  decreed,  not  only 
payment  of  the  legacy,  but  that  the 
otiier  bond  should  not  be  demanded. 
I  am  aware  that  the  propriety  of  the 
decision  was  doubted  by  Lord  Eldon, 
in  Eole  v.  So7ners,  6  Vesey,  322,  but 
he  did  not  venture  to  say  it  was  not 
law.  Notwithstandino-  the  weight  of 
that  great  man's  name,  I  am  unable 
to  entertain  a  similar  doubt.  What 
was  the  object  of  the  extrinsic  evi- 
dence, but  to  rebut  a  presumption  in 
the  interpretation  of  a  will ;  and  that 
it  is  competent  to  do  so,  is  an  elemen- 
tary principle  guarded  from  abuse  by 
the  consideration  that  the  court  never 
decrees  on  the  basis  of  it  when  the 
fact  is  at  all  in  doubt.  The  sum  of 
the  matter  is,  that,  though  a  parol 
discharge  without  consideration  is 
bad,  a  testamentary  discharge  with- 
out it,  is  good :  that  the  legal  pre- 
sumption of  an  intention  not  to  dis- 
charge a  debt  which  arises  from  a 
naked  legacy  to  the  debtor,  may  be 
rebutted  by  extrinsic  proof;  and  that 
the  presumption  being  first  rebutted 
by  it,  the  will,  and  not  the  proof,  op- 
erates the  discharge.  The  distinction 
may  be  a  subtle  one,  but  on  it  only  can 
the  preceding  decisions  be  sustained ; 
and  they  are  too  numerous  to  be  over- 
turned. Now  it  appears  in  the  proofs 
before  us,  that  the  testator,  having 
no  issue,  received  the  defendant  John, 
his  nephew,  into  his  house  an  adopted 
child  at  the  death  of  his  father;  and 
that  he  raised  him  from  early  infan- 
cy to  manhood,  entertaining  for  him 
the  affection  of  a  father.  To  one 
person    he    said,  that   he    meant   to 


EX     PARTE     PYE.  —  CHANCEY'S     CASE. 


593 


leave  his  property  to  those  who  would 
not  be  unthankful  for  it,  and  that  he 
had  bought  a  mill  and  sold  it  to  John 
for  form's  sake :  to  another,  that  he 
might  as  well  charge  much  as  little 
for  it,  as  John  would  get  it  any  how; 
and  if  he  charged  him  high,  John 
would  try  to  work  through.  To  an- 
other he  said,  that  he  would  make  a 
man  of  John;  and  that  he  should 
have  the  property  clear,  with  1000 
dollars,  the  amount  of  the  legacy  sub- 
sequently given.  Kemonstrating  with 
the  county  commissioners  against  the 
amount  of  tax  assessed  on  his  securi- 
ties, he  said  that  he  did  not  look  to 
payment  of  John's  bonds,  as  he  held 
them  only  to  get  the  property  back,  if 
John  should  not  do  well ;  but  that  he 
would  take  care  that  no  one  should 
collect  them  after  his  death.  To  carry 
out  his  purpose,  he  instructed  the  per- 
son who  wrote  his  will,  to  insert  in  it 
a  legacy  of  1000  dollars  to  John,  say- 
ing that  the  bonds  were  in  his  chest, 
and  could  be  easily  got  at  and  put 
out  of  the  way.  This  person  testi- 
fied, that,  being  unwilling  to  go  to  the 
chest,  as  persons  were  frequently  pass- 
ing through  thd  room,  who  might 
think  he  was  taking  an  improper 
liberty,  he  advised  the  testator  to  wait 
till  the  next  day  j  and  that  he  con- 
sented to  do  so,  but  again  mentioned 
the  bonds,  and  said  the  witness  should 
do  something  with  them.  The  will 
was  executed  the  next  morning ;  at 
noon  he  whispered  to  the  witness  : 
'You  know  what  I  said  about  the 
bonds,' — and  died.  Surely  if  ever 
there  was  a  case  of  disappointed  in-- 
tention  made  clear  by  extrinsic  evi- 
dence, this  is  one.  The  testator  did 
everything  in  his  power  to  annul  these 
bonds,  and  died  in  the  confident  be- 
VOL.  II. — 38 


lief  that  he  had  done  enough.  The 
case  is  decisively  stronger  than  Eden 
V.  Smith  ;  and  the  urgency  of  it  in- 
dicates its  principle.  Every  allow- 
ance is  to  be  made,  in  this  as  in  every 
other  respect,  for  the  ignorance  and 
helplessness  of  men  in  the  article  of 
death.  The  presumption  that  John's 
legacy  was  intended  to  be  a  clear  gra- 
tuity, which  was  repelled  in  the  first 
instance  by  the  production  of  his 
bonds,  was  restored  by  the  parol 
proofs  of  an  intention  to  release  them 
which  had  been  frustrated  by  accident, 
which  is  a  distinct  head  of  equitable 
relief.  The  will  then  becomes  a  re- 
lease ;  and  it  was  shown  that  the  exe- 
cutors ought  not  to  recover." 

When  the  debt  itself  is  bequeathed 
specifically,  there  can  of  course  be  no 
room  to  doubt  the  intention  of  for- 
giveness; and  the  result  will  be  the 
same  when  it  forms  part  of,  or  is  em- 
braced in  a  residuary  bequest ;  Hohart 
V.  Stone,  10  Pick.  215. 

Nearly  akin  to  the  question,  grow- 
ing out  of  the  gift  of  a  legacy  to  a 
creditor,  is  that  which  arises  where  a 
parent  who  has  given  a  legacy  by 
will,  subsequently  makes  another  gift, 
in  the  nature  of  a  portion  or  advance- 
ment, by  an  act  inter  vivos.  Under 
these  circumstances,  if  the  benefit  con- 
ferred by  the  gift,  is  of  the  same  na- 
ture as  that  bequeathed  by  the  legacy, 
the  object  of  the  one  will  be  fulfilled 
by  the  other,  and  if  so,  the  result 
must  be  satisfaction ;  Sims  v.  Sims, 
2  Stockton,  Ch.  158, 163.  This  rule 
was  applied  in  exact  accordance  with 
the  English  precedents,  in  Roberts  v. 
Weatherford,  10  Alabama,  72,  where 
a  father  who  had  made  a  bequest  of 
ten  slaves  to  his  daughter,  subsequent- 
ly conveyed  "  her  slaves"  to  the  num- 


594 


SATISFACTIOiSr.  —  ADEMPTION. 


ber  of  ten,  to  her  separate  use  on  her 
marriage.  This  settlement  was  held 
to  be  a  satisfaction  of  the  legacy,  both 
on  general  principles,  and  because  the 
description  of  the  property  in  the  set- 
tlement, as  belonging  to  the  grantee, 
not  the  grantor,  clearly  referred  to  the 
previous  testamentary  gift. 

A  similar  decision  was  made  in 
Jones  V.  Mason,  5  Randolph,  577, 
where  it  was  held  that  specific  lega- 
cies are  subject  to  the  same  rule  as 
those  which  are  general,  and  that  a 
bequest  of  certain  slaves  might  con- 
sequently be  satisfied,  by  a  subsequent 
gift  of  others  during  the  lifetime  of 
the  testator.  And  in  Moore  v.  Hilton, 
12  Leigh,  1,  it  was  decided,  that  mo- 
ney advanced  by  the  testator,  and  ap- 
pearing on  his  books  as  an  advance- 
ment, was  a  satisfaction  of  a  legacy, 
payable  out  of  the  sale  of  his  real  es- 
tate after  his  death.  The  same  prin- 
ciple was  applied  in  Langdon  v.  As- 
tor's  Ex'ors,  16  New  York  Reports,  9, 
and  a  gift  of  the  fund  out  of  which 
a  legacy  was  payable,  held  tfo  a  satis- 
faction of  the  legacy  itself,  the  pre- 
sumption being  strengthened  by  the 
language  of  the  testator,  and  by  the 
account  books  in  which  he  had  en- 
tered the  gift.  The  mode  in  which 
the  advancement  is  made  is  immate- 
rial, if  the  intention  to  satisfy  the 
legacy  be  apparent,  or  be  a  necessary 
inference,  under  all  the  circumstances; 
and  in  Garrett's  Appeal,  3  Harris, 
212,  where  a  testatrix  endorsed  on  a 
bond  for  SG40,  given  by  her  son  for 
money  advanced  to  him  as  a  loan,  that 
the  bond  "  was  not  to  be  collected,  but 
was  to  be  a  part  of  his  portion,  and  to 
stand  against  hiui  only  for  that  pur- 
pose/' the  loan  was  held  to  be  a  satis- 


faction pro  tanto  of  a  prior  legacy  of 
8800. 

The  general  principle,  that  a  gift 
by  one  standing  in  loco  pm-entis,  is  a 
prima  facie  satisfaction  of  a  prior  le- 
gacy, was  recognized  by  Gibson,  C. 
J.,  in  delivering  the  opinion  of  the 
court,  in  Zeiter  v.  Zciter,  4  Watts, 
212  ;  and  he  also  held,  that  although 
the  declarations  of  the  testator,  or 
other  extraneous  matters,  cannot  be 
given  in  evidence  to  vary  the  effect 
of  the  will,  they  are,  notwithstanding, 
admissible  for  the  purpose  of  sustain- 
ing or  rebutting  the  legal  or  equitable 
presumption  of  satisfaction.  But  it 
was  decided,  that  a  gift  cannot  be  pre- 
sumed by  the  law,  to  have  been  meant 
as  a  satisfaction  of  a  subsequent  or  co- 
temporaneous  bequest,  and  that  parol 
evidence  is,  consequently,  inadmissi- 
ble to  show  that  it  was  so  intended  by 
the  testator,  and  accepted  by  the  do- 
nee. And  in  the  subsequent  case  of 
Kreider  v.  Boi/er,  10  Watts,  54,  the 
declarations  of  the  testator  after  mak- 
ing his  will,  that  a  prior  debt  due  by 
a  son-in-law,  should  not  be  demanded 
of  him,  and  should  remain  in  his  hands 
as  an  advancement  to  his  wife,  were 
held  inadmissible  to  show  that  the  for- 
giveness of  the  debt,  was  meant  as  a 
satisfaction  of  a  bequest,  of  an  equal 
share  of  the  estate,  to  the  wife.  The 
only  doubt  that  could  have  arisen  in 
this  case,  was  as  to  how  far  the  inten- 
tion apparent  in  the  will  to  distribute 
the  estate  equally,  would  control  its 
construction,  and  there  can  be  no  doubt 
that  when  the  testator  declares  his  in- 
tention that  his  estate  shall  be  so  dis- 
tributed, that  each  of  his  children 
shall  be  put  on  a  footing  of  equali- 
ty   with    those    who    have    received 


EX     PARTE     PYE.  —  CHANCEY    S     CASE. 


595 


most,  prior  advancements  or  portions, 
as  well  as  subsequent,  must  be 
taken  into  account  in  making  the 
distribution  ;  Mussehnan' s  Estate,  5 
Watts,  9. 

In  GilVs  Estate,  1  Parsons,  Equity 
Cases,  189,  a  legacy  of  three  thousand 
dollars  was  bequeathed  by  an  uncle  in 
trust  for  his  niece,  with  a  proviso  that 
the  trustees  might  invest  it  in  furni- 
ture on  her  marriage,  if  she  desired  it. 
She  subsequently  married  in  the  tes- 
tator's lifetinie,  when  he  cj^pended 
twenty-three  hundred  dollars  in  the 
purchase  of  furniture  for  her  use,  and 
charged  the  amount  thus  expended 
against  her  in  his  books.  Under 
these  circumstances  the  court  decided 
that  a  legacy  given  by  a  parent,  or  one 
standing  in  loco  i^arenth,  must  be  con- 
sidered as  in  the  nature  of  a  portion, 
and  would,  therefore,  be  extinguished 
wholly  or  fro  tanto,  by  subsequent 
gifts  or  advances  to  the  legatee,  and 
that  as  the  evidence  showed  that  such 
was  the  relation  which  the  testator  had 
assumed  towards  his  niece,  the  gift  to 
her  was  to  be  regarded  as  a  satisfac- 
tion of  the  bequest.  ''In  Ex  parte 
Pye,  18  Vesey,  140,"  said  King,  Pre- 
sident, in  delivering  the  opinion  of  the 
court,  "  Lord  Eldon  observes,  '  that, 
where  a  father  gives  a  legacy  to  a 
child,  the  legacy  coming  from  a  father 
to  his  child  must  be  understood  as  a 
portion,  though  it  is  not  so  described 
in  the  will;  and  afterwards  advancing 
a  portion  to  that  child,  though  there 
may  be  slight  circumstances  of  differ- 
ence between  the  advance  and  the 
portion,  and  a  difference  in  amount, 
yet  the  father  will  be  intended  to  have 
the  same  purpose  in  each  instance, 
and  the  advance  is  therefore  an  ademp- 


tion of  the  legacy  ;  but  a  stranger  giv- 
ing a  legacy  is  understood  as  giving  a 
bounty,  not  as  paying  a  debt ;  he  must, 
therefore,  be  proved  to  mean  it  as  a 
portion  or  provision  either  on  the  face 
of  the  will,  or,  if  it  may  be,  and  it 
seems  it  may,  hy  evidence,  applying 
directly  to  the  gift  proposed  by  the 
will,'  See  Elkenhcad' s  case,  2  Ver- 
non, 257 ;  Ward  v.  Lont,  Prec.  in 
Chan.  182  ;  Watson  v.  Lord  Lincoln, 
Amb.  325.  The  presumed  ademp- 
tion may  be  destroyed  or  confirmed  by 
the  application  of  parol  evidence  of  a 
different  intention  by  the  testator ; 
Bigglcston  v.  Gruhh,  2  Atk.  48  ;  Ron- 
nell  V.  Barnett,  3  Id.  77;  Trimmer 
V.  Bayne,  7  Ves.  508 ;  Rohinson  v. 
Whitely,  9  Id.  577;  TheUuson  v. 
Woodford,  4  Madd.  420.  This  doe- 
trine  equally  applies  where  the  testa- 
tor has  placed  himself  in  loco  paren- 
tis to  the  legatee.  Where  the  testa- 
tor's assumption  of  the  office  of  a 
parent  is  established,  his  legacy  will 
be  considered  a  portion,  and  a  subse- 
quent advancement  will  be  an  ademp- 
tion in  all  cases  where  it  would  be  so 
if  made  by  a  natural  father. 

"  In  the  extensive  class  of  cases  on 
this  doctrine  to  be  found  in  the  Equi- 
ty Pteports,  the  chief  difficulty  in  its 
application  seems  to  have  arisen  from 
the  inquiry,  what  are  circumstances 
sufficient  to  invest  the  testator  with 
the  assumed  relation  of  parent  to  the 
legatee ;  and  the  evidence  compe- 
tent to  prove  that  he  placed  himself 
in  such  character?  Roper  declares 
the  test  in  such  cases  to  be,  whether 
the  circumstances  taken  in  the  aggre- 
gate amount  to  moral  certainty,  that 
a  testator  considered  himself  in  the 
place   of   the   child's   father,   and   as 


596 


SATISFACTION. — ADEMPTION. 


meaningTo  discharge  that  natural  ob- 
ligation, which  it  was  the  duty  of  a 
parent  to  perform. 

"  The  assumption  by  a  person  of  the 
relation  of  a  parent  to  the  legatee  may 
be  proved  by  parol,  and  is  not  requir- 
ed to  be  collected  from  the  face  of  the 
will  itself.  The  facts  existing  in  this 
ease,  clearly  show  that  the  testator 
placed  himself  in  that  relation  to  the 
children  of  his  sister,  Mary  Campbell. 
On  the  clearest  principles,  therefore, 
the  advance  for  furniture  to  Mrs. 
jMiller  must  be  regarded  as  an  ademp- 
tion of  her  legacy  of  ^3000,  to  the 
extent  of  such  advance." 

In  many  of  these  instances  the  rela- 
tion of  parent  and  child,  subsisted  be- 
tween the  parties,  and  they  came  there- 
fore fully  within   the   English  rule, 
which  puts  children  in  this  respect,  on 
a  worse  footing  than  strangers  ;  (ante, 
579.)     But  the  existence  of  this  re- 
lation is  not  essential  to  the  existence 
of  the  presumption,  which  may  grow 
out  of  other  circumstances.    In  Rich- 
ards V.  Humphreys,  15  Pick.  133, 
there  were   strong   circumstances  to 
show  that  the  gift  was  intended  as  a 
satisfaction  of  the  legacy,  but  it  was 
objected  that  the  rule  did  not  apply, 
as  the  question  arose  between  brother 
and  sister,  and  not  between  persons 
standing  in  the  relation  of  parent  and 
child.    But  the  court  took  the  reason- 
able and  sound  distinction,  that  the 
existence  of  this  relation  is  merely 
one    circumstance    among    many,   on 
which  to  found  a  presumption,  that  a 
benefit  conferred  inter  vivos,  is  meant 
to  take  the  place  of   a  testamentary 
bequest,  and  that  when  such  an  inten- 
tion   is   satisfactorily  established   by 
any  competent  evidence,  it  cannot  be 
allowed  to  fail  of  effect.     In  the  case 


under  consideration,  the  testator  had 
bequeathed  five  hundred  dollars  by 
will  to  his  sister,  a  married  woman, 
who  on  learning  the  existence  of  the 
bequest,  applied  to  him  for  an  advance 
of  money  to  aid  in  a  purchase  of  land. 
In  consequence  of  this  application  he 
made  her  an  advance  of  S4G6,  for 
which  he  took  a  receipt,  stating  that 
the  money  was  given  in  part  payment 
of  the  dowry  given  her  in  his  will.  It 
was  held  by  the  court,  that  these  cir- 
cumstances clearly  showed  that  the 
payment  was  made  on  account  of  the 
legacy,  and  that  the  latter  was  satis- 
fied to  the  full  extent  of  the  amount 
paid.  In  deciding  the  case,  the  court 
used  the  following  language  : 

*'  The  ademption  of  a  specific  and 
of  a  general  legacy  depends  upon 
very  different  principles.  A  specific 
legacy  of  a  chattel,  or  a  particular 
debt,  or  parcel  of  stock,  is  held  to  be 
adeemed,  when  the  testator  has  col- 
lected the  debt,  or  disposed  of  the 
chattel  or  stock,  in  his  lifetime,  what- 
ever may  have  been  the  intent  or  mo- 
tive of  the  testator  in  so  doing.  But 
when  a  general  legacy  is  given,  of  a 
sum  of  money  out  of  the  testator's 
general  assets,  without  regard  to  any 
particular  fund,  intention  is  of  the 
very  essence  of  ademption.  The  tes- 
tator, during  his  life,  has  the  absolute 
power  of  disposition  or  revocation.  If 
he  pay  a  legacy  in  express  terms  dur- 
ing his  lifetime,  although  the  term 
payment,  satisfaction,  release  or  dis- 
charge be  used,  it  is  manifest  that  it 
will  operate  by  way  of  ademption,  and 
can  operate  in  no  other  waj^,  inasmuch 
as  a  legacy,  during  the  life  of  the  tes- 
tator, creates  no  obligation  upon  the 
testator  or  interest  in  the  legatee, 
which  can  be  the  subject  of  payment, 


EX     PARTE     PYE. 


•CHANCEY    S     CASE. 


597 


release  or  sutisfactiou.  If,  therefore, 
a  testator,  after  having  made  his  will, 
containing  a  general  bequest  to  a  child 
or  stranger,  makes  an  advance,  or 
does  other  acts  which  can  be  shown 
by  express  proof,  or  reasonable  pre- 
sumption, to  have  been  intended  by 
the  testator  as  a  satisfaction,  discharge 
or  substitute  for  the  legacy  given,  it 
shall  be  deemed  in  law  to  be  an  ademp- 
tion of  the  legacy.  Hence  it  is  that 
when  a  father  has  given  a  child  a 
legacy  as  a  portion  or  provision  for 
such  child,  and  afterwards  upon  the 
event  of  the  marriage,  or  other  similar 
occasion,  makes  an  advance  to  such 
child,  as  and  for  a  portion  or  provi- 
sion, though  to  a  smaller  amount  than 
the  legacy,  it  shall  be  deemed  a  sub- 
stitute for  the  provision  contemplated 
by  the  will,  and  thence  as  an  ademp- 
tion of  the  whole  legacy.  This  is 
founded  on  the  consideration,  that 
the  duty  of  a  father  to  make  a  provi- 
sion for  his  child,  is  one  of  imperfect 
obligation  and  voluntary,  that  his 
power  of  disposing  is  entire  and  un- 
controlled, that  he  is  the  best  and  the 
sole  judge  of  his  ability  in  this  re- 
spect, and  of  the  amount  which  it  is 
proper  for  him  to  appropriate  to  any 
one  child,  as  such  provision.  The 
law  presumes,  in  the  absence  of  other 
proof,  that  it  was  the  intention  of  the 
father  by  the  legacy  to  make  such  pro- 
vision, that  it  was  not  his  intention  to 
make  a  double  provision,  that  when 
after  the  will  is  executed,  another  pro- 
vision is  made  for  the  same  child,  the 
original  intent  of  making  such  provi- 
sion by  will  is  accomplished  and  com- 
pleted, that  the  pui-pose  of  giving  the 
legacy  is  satisfied,  and  of  course 
concludes,  that  the  legacy  itself  is 
adeemed.    And  if  the  subsequent  por- 


tion or  provision  made  in  the  lifetime 
of  the  testator,  is  less  than  the  legacy, 
still  it  operates  as  an  ademption  of  the 
whole  legacy,  not  because  a  smaller 
sum  can  be  a  payment  of  a  larger,  but 
because  it  manifests  the  will  and  in- 
tent of  the  testator  who  is  the  sole 
disposer  of  his  own  bounty,  to  reduce 
the  amount  of  the  provision,  origin- 
ally contemplated,  when  he  made  his 
will ;  Hartop  v.  Whitmore,  1  P.  Wms. 
681  ;  Clarke  v.  Bur<joyne,  1  Dick. 
353.  From  this  view  of  the  subject 
of  the  ademption  of  general  legacies, 
it  seems  manifest,  that  the  ademption 
takes  effect,  not  from  the  act  of  the 
legatee,  in  releasing  or  receiving  satis- 
faction of  the  legacy,  but  solely  from 
the  will  and  act  of  the  testator,  in 
making  such  payment  or  satisfaction, 
or  substituting  a  different  act  of  bounty 
which  is  shown  by  competent  proof  to 
be  intended  as  such  payment,  satisfac- 
tion, or  substitute. 

"  The  question  therefore  is,  whether 
from  the  facts  shown  in  the  present 
case,  it  sufficiently  appears,  that  the 
advance  of  money  made  by  the  testa- 
tor in  his  lifetime  to  his  sister,  was 
intended  as  a  part  payment  and  satis- 
faction of  the  legacy  given  to  her  by 
his  will  ]  if  it  was  so  intended,  the  law 
deems  it  an  ademption  pro  tanto. 

"  Most  of  the  cases  cited  on  the 
part  of  the  plaintiff,  to  show  what  the 
law  does,  and  what  it  does  not,  regard 
as  an  ademption,  are  cases  where  the 
testator,  in  making  an  advance  during 
his  lifetime,  does  not  express  the  ob- 
ject or  purpose  of  such  advance,  and 
its  intended  effect  upon  a  legacy  given, 
and  are  designed  to  show,  from  what 
combinations  of  facts  and  circumstan- 
ces, the  law  will  or  will  not  raise  a 
presumption,  that  it  was  the  intention 


598 


SATISFACTION.  —  ADEMPTION. 


of  the  testator,  that  the  advance  should 
or  should  not  operate,  in  whole  or  iu 
part,  as  a  satisfaction  or  substitute  for 
the  legacy.  But  they  all  proceed 
upon  the  assumption,  that  where  such 
intention  is  proved,  either  by  legal 
and  competent  proof,  or  by  legal  pre- 
sumption, the  consequence  of  ademp- 
tion will  follow.  Such  were  the  cases 
of  Ex  'parte  Duhost,  18  Ves.  140,  and 
Puwel  V.  Cleaver,  2  Bro.  C.  C.  499; 
the  former  that  of  an  illegitimate 
child,  described  as  the  daughter  of 
another  person,  and  the  latter,  of  a 
niece.  There  was  nothing  in  either 
ease,  satisfactorily  to  show  that  the 
testator  intended  to  place  himself  in 
loco  parentis,  and  therefore  nothing, 
according  to  the  somewhat  artificial 
reasoning  before  stated,  to  raise  the 
presumption,  that  he  intended  the 
legacy  as  a  provision  for  a  child. 
The  ground  therefore  was  taken  away, 
upon  which  the  law  would  conclude 
that  the  advance  on  marriage  was  in- 
tended as  a  provision,  and  therefore 
there  being  neither  evidence  nor  pre- 
sumption, that  the  advance  was  a  sub- 
stitute for  the  legacy,  it  could  not 
operate  as  an  ademption. 

''  In  the  present  case  we  are  of 
opinion,  that  conforming  strictly  to 
the  rules  of  law  in  regard  to  the  ad- 
missibility of  evidence,  it  is  quite  ap- 
parent from  the  facts  proved,  that  the 
payment  was  intended  by  the  testator, 
as  an  advance  on  account  of  this 
legacy,  and  an  ademption  pro  tantn. 

"  If  it  stood  upon  the  receipt  alone, 
we  are  strongly  inclined  to  the  opi- 
nion, that  by  a  necessary  construction 
it  must  apply  to  this  legacy.  It  ac- 
knowledges the  receipt  of  the  money, 
of  Ilawes,  in  part  of  the  plaintiff's 
right  of  dower  under  his  last  will,  he 


being  her  brother.     Had  the  words, 
'  of  dower,'  been  omitted,  the  receipt 
would  have  been  sufficiently  clear,  to 
wit,  her  right  under  his  last  will  and 
testament.     When  the  words  come  to 
be  applied  to  the  subject-matter,  it  is 
apparent  that  they  are  perfectly  sense- 
less.    If  by  retaining  these  qualifying 
words,  the  clause  could  be  made  to 
apply  to  any  other  right  or  subject- 
matter,  or  if  the  effect  of  them  in  their 
actual  application,  would  be  such  that 
they  could  not  apply  to  and  describe 
this  legacy,  the  court  would  certainly 
not  be  warranted  in  rejecting  them. 
It  is  a  general  rule,  in  the  construc- 
tion of  written  instruments,  that  where 
words  are  used,  by  way  of  description, 
of  persons  or  things,  and  the  words 
apply  in  all  material  particulars  to  one 
subject,  and    there    is   no   other,  to 
which  they  can  apply,  they  shall  be 
considered  as  applying  to  that  which 
they  do  describe  sufficiently  to  indi- 
cate its  identity,  although  they  fail  in 
some  particular.    Such  misdescription 
is    regarded    as    a   latent  ambiguity, 
which  arises,  when  the  words   come 
to  be  applied  to  the  subject-matter, 
and   therefore    may  be    corrected  by 
showing  aliunde  that  there  is  no  such 
subject  to  which  they  can  be  applied, 
but  that  there  is  another  which  the 
words  do  sufficiently  describe  to  show 
that  it  was  the  subject  intended.     So 
where  a  legacy  describes  one  species 
of  stock  ;  but  it  appears  that  when  the 
testator  made  his  will  he  had  not  that 
particular  species  of  stock,  but  another 
so  like  it,  that  it  could  leave  no  doubt 
it  was  the  one  intended,  this  latter 
shall  pass  by  the  legacy;  Seldwoodx. 
3Iildmai/,  ;i  Ves.  310.     Here,   con- 
sidering the  receipt  as   a   receipt  of 
money  in  part  of  a  right  of  dower 


EX     PARTE     PYE. 


■CHANCEY   S     CASE. 


599 


under  his  will,  it  is  wholly  senseless 
and  describes  nothing,  because,  on 
reference  to  the  will,  no  such  right 
appears,  and  no  commutation  or  satis- 
faction of  any  right  of  dower  is  shown, 
to  which  it  can  apply.  But  there  is 
another  interest,  which  being  a  testa- 
mentary gift  to  a  woman,  might,  by  an 
ignorant  female,  be  miscalled  a  right 
of  dower;  but  what  is  more  material, 
if  the  receipt  does  not  apply  to  this 
legacy,  it  would  be  wholly  without 
application .  It  is  upon  these  grounds, 
that  we  are  strongly  inclined  to  the 
opinion,  that  if  it  stood  upon  the  con- 
struction of  the  receipt  alone,  taken 
in  connection  with  the  will,  it  must 
be  considered  a  payment  on  account 
of  this  legacy,  without  reference  to 
the  declarations  of  the  testator. 

"  Eut  the  ground  upon  which  the 
court  decide  the  cause  is  this.  What- 
ever may  be  the  difficulties,  in  apply- 
ing the  rule,  which  prohibits  the  ad- 
mission of  parol  evidence  to  alter  or 
control  a  written  instrument,  there  is 
one  modification,  which  will  sanction 
its  admission  in  the  present  case. 
"Whenever  an  act  is  done,  the  decla- 
rations of  the  party  doing  it,  made  at 
the  time,  are  received  to  show  the 
character  of  the  act,  and  the  purpose 
and  design  with  which  it  is  done.  It 
is  readily  conceded,  that  it  would  not 
be  competent  to  give  in  evidence  the 
declarations  of  the  testator,  showing 
that  he  intended  by  any  clause  in 
his  will,  something  different  from  the 
dispositions  expressed,  or  to  limit  or 
control  the  legal  inferences  or  pre- 
sumptions arising  from  those  expres- 
sions. Nor  would  it  be  admissible  to 
show  such  declarations  alone,  to  prove 

direct  intent  of  the  testator  to  re- 
voke or  adeem  a  legacy.     It  would  be, 


in  either  case,  to  make  or  revoke  a 
will  by  parol;  which  is  alike  contrary 
to  the  general  rule  of  law,  and  to  the 
Statute  of  Frauds.  But  when  an  act 
is  done,  which,  if  done  with  one  in- 
tent, will  operate  as  an  ademption,  and 
if  with  a  different  intent,  otherwise, 
under  the  rule  already  stated,  evidence 
of  the  declarations  of  the  intent  may 
be  given,  to  qualify  the  act,  and  the 
act  operates  by  way  of  ademption. 
Here  the  declarations  made  at  the 
time  of  the  advance  and  payment  of 
the  money,  not  being  contradictory  to 
the  receipt,  but  in  conformity  with  it, 
prove  conclusively,  that  they  were 
made  in  part  satisfaction  of  this  legacy. 
Besides,  if  it  were  necessary  to  resort 
to  that  principle,  it  is  a  well-establish- 
ed exception  to  the  general  rule,  ex- 
cluding parol  evidence  to  explain  and 
control  a  written  instrument,  that  a 
receipt  for  money  maybe  so  explained 
and  controlled. 

"  But  there  is  another  fact,  stated 
in  the  case,  which  it  seems  competent 
to  show  by  parol  evidence,  and  which 
leads  to  the  same  conclusion.  It  is 
stated,  that  the  testator  expressed  his 
desire  to  the  plaintiff,  at  the  same  time, 
to  pay  off  the  legacies  to  his  brothers 
and  sisters  in  his  lifetime,  and  that  he 
offered  to  pay  her  the  balance  of  her 
legacy,  which  she  declined  receiving. 
What  is  the  inference  from  an  offer  to 
pay  the  balance,  excep-t  that  part  was 
already  paid  ?  On  the  whole,  we  are 
satisfied,  that  the  evidence,  to  the  ex- 
tent of  showing  the  intent  and  purpo- 
ses of  the  payment,  was  admissible, 
and  being  admitted,  it  proves  conclu- 
sively, that  it  was  a  payment  on  ac- 
count of  this  legacy. 

"As  to  the  objection,  that  at  the 
time  of  the  payment,  the  plaintiff  was 


600 


SATISFACTION.  —  ADEMPTION. 


Q.feme  covert,  we  are  of  opinion,  that 
it  does  not  vary  the  result.  It  is  very 
clear,  that  the  plaintiflf's  husband, 
having  died  before  the  testator,  had  no 
interest  in  this  legacy.  The  only 
ground,  therefore,  is,  that  the  plaintiff 
was,  at  the  time  of  the  payment^  under 
the  disability  of  coverture.  But  we 
have  seen  that  ademption  depends 
solely  on  the  will  of  the  testator,  and 
not  at  all  upon  the  ability  of  the  party 
receiving  to  give  a  valid  discharge. 
Had  the  money  been  paid  to  trustees 
or  others  for  her  benefit,  without  any 
act  or  consent  of  hers,  if  given  ex- 
pressly in  lieu  or  in  satisfaction  of  such 
legacy  to  her,  it  would  have  operated 
as  an  ademption.  Had  he  purchased  a 
house  or  other  property  in  her  name, 
and  for  her  benefit,  with  the  like  in- 
tent and  purpose  expressed,  it  would 
have  had  the  same  effect.  The  cir- 
cumstance of  her  disability  therefore, 
at  the  time  of  the  payment,  is  not  in- 
consistent with  the  testator's  intent  in 
making  it,  to  advance  and  satisfy  the 
legacy  to  her,  nor  does  it  affect  the 
efficacy  of  such  payment  as  an  ademp- 
tion. The  balance  of  the  legacy  hav- 
ing been  paid  into  court,  nothing  re- 
mains due."  The  position  thus  taken 
is  sustained  by  the  language  held  in 
Sims  V.  Sims,  2  Stockton,  Ch.  158, 
163,  where  it  was  said,  that  parol  evi- 
dence might  be  given,  to  rebut  or 
strengthen  an  equitable  presumption, 
and  consequently  to  show  whether  an 
advancement  was  or  was  not  meant  as 
a  satisfaction  of  a  prior  testamentary 
donation ;  ante. 

A  presumption  in  favor  of  the  satis- 
faction of  a  legacy  by  a  portion,  may 
arise  where  money  is  paid  for  the  use 
of  a  child,  as  well  as  where  the  pay- 
ment is  direct  and  immediate  in  its 


character;  and  in  Uauherger  v.  Root, 
5  Barr,  113,  it  was  decided,  that  mo- 
ney expended  by  a  father,  in  the  pur- 
chasing land  for  the  separate  use  of 
his  daughter,  would  take  effect  as  a 
discharge  of  a  legacy  previously  given 
by  will,  when  it  appeared  from  the  de- 
clarations of  the  testator,  that  such 
was  the  view  with  which  he  made  the 
purchase.  The  declarations  of  the 
testator,  were  also  held  admissible  to 
show,  that  he  intended  a  subsequent 
settlement  as  a  satisfaction  of  a  prior 
legacy,  in  James  v.  3Iason,  5  Ran- 
dolph, 577;  and  Sims  v.  Sims,  2  Stock- 
ton, Ch.  158.  The  rule  on  which  the 
courts  acted  in  these  cases,  does  not, 
however,  apply,  xmless  the  legacy  and 
portion,  or  advancement,  are  of  the 
same  nature,  or  there  are  extrinsic 
circumstances,  to  show  that  the  testa- 
tor intended  one  to  go  in  satisfaction 
of  the  other ;  and  the  gift  of  a  house 
will  have  no  effect  in  barring  and 
adeeming  a  prior  bequest  of  a  sum  of 
money ;  Diujan  v.  Hollins,  8  Mary- 
land, 139. 

The  doctrine,  that  a  legacy  or  de- 
vise, may  enure  as  a  satisfaction  of  a 
previous  engagement,  to  give  a  main- 
tenance or  portion,  was  applied  in  the 
case  of  Bryant  v.  Hunters,  3  W.  C.  11. 
48.  Alexander  Hare,  on  his  marriage 
with  his  wife  Margaret  Hare,  executed 
a  bond  in  the  nature  of  a  marriage 
settlement,  by  which  he  bound  himself 
to  secure  to  his  wife  and  her  child  or 
children,  the  interest  of  five  thousand 
dollars  during  his  life,  and  the  prin- 
cipal after  his  death,  by  conveying  to 
trustees  within  one  year  after  the  mar- 
riage, lands  of  sufficient  value  for  the 
purpose.  The  conveyance  thus  sti- 
pulated for,  was  never  made,  but  lands 
to  a  irrcater  value  were  devised  to  the 


EX     PARTE     PYE.  —  CHANCEY    S     CASE. 


601 


wife  by  will.  Subsequently  to  the 
death  of  the  testator,  the  wife  made 
a  nuncupative  will,  by  which  she  di- 
rected that  all  her  estate  under  the 
will  of  her  husband,  or  otherwise, 
should  be  equally  divided  between  her 
son  and  nephew.  Under  these  cir- 
cumstances, the  devise  was  held  to  be 
a  satisfaction  of  the  condition  of  the 
bond.  ''The  question  is,"  said  Wash- 
ington, J.,  "whether  the  devise  to 
Mrs.  Hare,  was  a  satisfaction  or  per- 
formance in  whole,  or  in  part,  of  the 
marriage  contract,  and  was  accepted? 
The  general  rule  is,  that  a  devise  of 
land  is  not  a  satisfaction,  or  part  per- 
formance, of  an  agreement  to  pay  mo- 
ney. But  in  this  case,  Alexander 
Hare,  by  the  marriage  contract,  bound 
himself  to  assure  to  the  trustees  of  his 
intended  wife,  a  sufficient  real  or  per- 
sonal estate,  to  secure  the  payment  of 
5000  dollars  for  her  sole  use,  in  case 
she  should  survive  him,  or  should,  by 
his  last  will,  within  the  said  year  from 
the  date  of  the  bond,  bequeath  to  her 
such  estate  as  should  be  fully  adequate 
to  the  intended  provision.  He  accord- 
ingly makes  a  provision  for  her  by 
will,  and  though  not  made  within  the 
year,  this  circumstance  is  immaterial ; 
a  will  being  ambulatory.  This  provi- 
sion is  to  all  intents  and  purposes,  a 
performance  or  part  performance  of 
the  contract;  and,  although  he  does 
not  so  declare  in  his  will,  yet,  that 
he  intended  it,  is  not  to  be  question- 


ed ;  for,  it  is  inconceivable  that  he 
should  have  meant  to  give,  as  a  bounty 
to  his  wife,  nearly  half  his  estate,  and 
to  have  left  this  large  debt  to  sweep 
away  the  provision  intended  for  his 
son.  The  reference  in  the  bond  to  a 
provision  in  land,  or  other  property, 
to  be  made  by  will,  differs  this  from 
all  the  cases  that  were  cited ;  and,  we 
must  presume,  that  the  will  was  in- 
tended to  comply  with  the  condition 
of  the  bond.  The  nuncupative  will 
amounts  to  an  express  acceptance  of 
the  devise ;  as  it  disposes  of  all  the 
property  of  every  kind,  vested  in  her 
by  the  will  of  her  husband,  or  other- 
wise. This  property  consisted  of  land 
and  personal  estate,  the  latter  very 
trifling,  particularly,  after  the  plate 
and  other  things  devised  by  her,  were 
deducted.  The  court  has  no  autho- 
rity for  limiting  her  words  to  the  per- 
sonal property ;  because  the  will  could 
not,  in  point  of  law,  pass  the  real  es- 
tate; a  circumstance  which  most  pro- 
bably she  did  not  know."  The  same 
rule  was  laid  down,  in  Winn's  Adm'r 
V.  Weir,  3  B.  Monroe,  648 ;  Tat/lor 
V.  Lanier,  3  Murphy,  98 ;  and  Guiy- 
nard  v.  Mayrant,  4  Dessaussure,  614. 
But  it  does  not  apply  where  there  is 
anything  in  the  terms  of  the  will  to 
rebut  the  presumption,  that  the  be- 
quest was  intended  as  a  satisfaction 
of  the  portion;  Taylor  v.  Lanier; 
Guignard  v.  Mayrant. 


002  PERFORMANCE. 


PERFORMANCE. 

[*345]  *WILCOCKS  v.  WILCOCKS. 

DE  TERM.  S.  TRINITATIS,  1V06. 

reported  2  vern.  558.* 

Performance  op  a  Covenant  to  purchase  and  settle  an  Estate.] — 
A.  covenants,  on  his  marriage,  to  purchase  lands  o/ £200  a  year,  and  settle 
them  for  the  jointure  of  his  wife,  and  to  the  first  and  other  sons  of  the  mar- 
riage in  tail.  He  purchases  lands  of  that  value,  hut  maJces  no  settlement ; 
and  on  his  death  the  lands  descend  on  the  eldest  son.  On  a  hill  hy  the 
eldest  son  for  a  specific  performance  of  the  covenant,  it  loas  held  that  the 
lands  descended  were  a  satisfaction  of  the  covenant. 

The  plaintiff's  father,  upon  his  marriage,  covenanted  to  purchase  lands  of 
£200  per  annum,  and  to  settle  the  same  upon  himself  for  life,  and  on  his  wife 
for  her  jointure,  and  to  the  first  and  other  sons  in  tail,  remainder  to  the 
daughters. 

The  father,  who  was  a  freeman  of  the  city  of  London,  died  intestate,  having 
purchased  lands  of  the  value  of  £200  per  annum,  but  made  no  settlement 
thereof,  but  permitted  them  to  descend  upon  the  plaintiff,  his  eldest  son,  who 
now  brought  a  bill  founded  on  his  father's  marriage  articles,  to  have  £200  per 
annum  purchased  out  of  the  personal  estate,  and  settled  to  the  uses  in  the  mar- 
riage articles. 

Lord  Keeper  Cowper. — The  lands  descended,  being  of  £200  per  annum 

and  upwards,  ought  to  be  deemed  a  satisfaction  of  the  covenant,  and  decreed 

it  accordingly  f  and  that  the  personal  estate  should  be  divided  and  distributed 

amongst  the  three  children,  according  to  the  *custom  of  the  city  of 

L         -'   London,  and  the  statute  for  settling  intestates'  estates. 

One  of  the  daughters  having  attained  the  age  of  seventeen  years,  made  her 
will,  and  devised  her  personal  estate. 

Per  Cur. — The  will  is  good  as  to  the  share  that  belonged  to  her  by  the 
statute;  but  as  to  her  orphanage  share,'  she  dying  unmarried  before  twenty- 
one,  it  survives  to  the  other  orphans  by  the  custom,  and  her  will  could  not 
take  place  upon  her  orphanage  part. 

1  S.  C,  1  Eq.  Ca.  Ab.  26,  pi.  5.  «  See  Heme  v.  Heme,  2  Vcrn.  555. 

'  A  child  entitled  to  an  orphanage  share  of  his  father's  personal  estate,  dying  under 
twenty-one,  and  unmarried,  cannot  devise  it  by  his  will ;  for,  by  the  custom,  it  survives 
to  the  other  children;  but  he  might  (previous  to  1  Vict.  c.  2G,  which  renders  the  wills 
of  all  persons  under  twenty-one  invalid,)  have  devised  his  share  under  the  Statute  of 
Distributions. 


BLANDY     V.     WIDMORE.  603 

*BLANDY  V.  WIDMORE.  [*347] 

DE  TERM.  S.  TRIN.  1716. 

reported  1  p.  wms.  323.^ 

Performance  op  a  Covenant  to  leave  a  Sum  op  money  by  allow- 
ing A  Sum  to  devolve  by  Intestacy.] — Covenant  hy  a  man,  previous 
to  •marriage,  to  leave  his  intended  wife  £620.  The  marriage  takes  place, 
and  he  dies  intestate  ;  the  tvi/e's  share  comes  to  above  £620 ;  this  is  a  satis- 
faction. 

Upon  the  marriage  of  A.  with  B.,  there  were  articles  reciting,  that,  in  con- 
sideration of  the  marriage,  and  of  the  portion,  it  was  agreed  that  if  B.,  the  wife, 
should  survive  A.,  her  intended  hushand,  A.  should  leave  B.  £620;  and 
accordingly  A.  covenanted  with  B.'s  trustees,  that  his  executors,  within  three 
months  after  his  decase,  should  pay  B.  £620  if  she  should  survive  him. 

A.  died  intestate  and  without  issue;  upon  which  B.,  the  wife,  by  the  Sta- 
tute of  Distributions,  became  entitled  to  a  moiety  of  the  personal  estate,  which 
was  much  more  than  £620;  and  the  question  was,  whether  the  distributive 
share  belonging  to  B.,  being  more  than  £620,  should  go  in  satisfaction  of  it. 

Serjeant  Hoojier. — This  £620  is  a  debt,  and  debts  must  be  first  paid,  after 
which  the  distribution  is  to  be  made ;  and  if  the  intestate  had  made  a  will, 
probably  he  would  have  given  to  his  wife  something  additional  to  this  £620. 
Now,  what  the  statute  gives  is  not  his  gift,  and,  being  not  his  gift,  is  not  to 
be  taken  as  his  payment;  or,  supposing  it  to  be  his  gift,  still  it  cannot  be  said 
to  be  his  payment. 

*LoRD  Chancellor  Cowper. — I  will  take  this  covenant  not  to  he 
broken,  for  the  agreement  is  to  leave  the  widow  £620.  Now  the  intes-  L  J 
tate  in  this  case  has  left  his  widow  £620  and  upwards,  which  she,  as  adminis- 
tratrix, may  take  presently  upon  her  husband's  death  ;  wherefore,  let  her  take 
it;  but  then  it  shall  be  accounted  as  in  satisfaction  of,  and  to  include  in  it, 
her  demand  by  virtue  of  the  covenant;  so  that  she  shall  not  come  in  first  as  a 
creditor  for  the  £620,  and  then  for  a  moiety  of  the  surplus. 

And  Mr.  Vernon  said,  it  had  been  decreed  in  the  case  of  Wilcochs  v.  Wil- 
cocks,^  Trin.  1706,  that  if  a  man  covenants  to  settle  an  estate  of  £100  per 
annum  on  his  eldest  son,  and  he  leaves  lands  of  the  value  of  £100  per  annum 
to  descend  upon  such  son,  this  shall  be  a  satisfaction  of  the  covenant  to  settle ; 
and  that  this  last  was  a  stronger  case,  it  being  the  case  of  an  heir,  who  is 
fiivorcd  in  equity;  also  the  case  of  Phinei/  v.  Phiney^  was  cited. 

1  S.  C,  2  Vern.  709.  2  2  Vern.  558,  ante,  345. 

3  2  Vern.  638. 


604  PERFORMANCE. 


Whereupon  the  decree'  made  by  Sir  John  Trevor,  Master  of  the  Rolls,  was 
now  afl&rmed  by  Lord  Chancellor  Cowper.^ 


Wilcocks  V.  Wilcocks  was  decided  in  accordance  with  the  rule  of  equity, 
that,  where  a  person  covenants  to  do  an  act,  and  he  does  that  which  may 
either  wholly  or  partially  be  converted  to  or  towards  a  completion  of  the  cove- 
nant, he  shall  be  presumed  to  have  done  it  with  that  intention.  In  that  case, 
it  will  be  observed  that  a  person  covenanted  to  purchase  and  to  settle  lands  of 
a  certain  value,  and  afterwards  purchased  lands  of  equal,  or  greater  value, 
which  descended  upon  his  heir,  and  they  were  deemed  a  performance  of  the 
covenant. 

The  result  will  be  the  same  where  a  person,  having  no  real  estate,  covenants 
to  convey  and  settle,  and  he  afterwards  purchases,  but  does  not  convey  or  settle, 
real  estate  :  Deacon  v.  Smith,  3  Atk.  323 ;  and  see  Welleslei/  v.  Wcllesley,  4 
My.  &  Cr.  561. 

Where  the  lands  purchased  are  of  less  value  than  the  lands  covenanted  to 
be  purchased  or  conveyed  and  settled,  they  will  be  considered  as  purchased  in 
part  performance  of  the  covenant :  ^ Lechmere  v.  Earl  of  Carlisle,  3 
[*349]  p  ^y^g  211 J  Lechmere  v.  Lcclimere,  Ca.  t.  Talb.  80;  Soivdcn  v. 
Sowden,  1  Bro.  C.  C.  582  ;  3  P.  Wms.  228,  n. ;  Gardner  v  Marquis  of  Totcn- 
shend,  G.  Coop.  303;  and  see  4  Ves.  116,  117;  10  Ves.  9,  516. 

Even  if  the  heir  be  not  a  person  interested  in  the  performance  of  the  cove- 
nant, the  land  will  be  bound  in  his  hands  by  it,  (^Garthshore  v.  Chalie,  10 
Ves.  9 ;)  and  it  is  immaterial  whether  the  estates  are  to  be  purchased  within 
a  limited  time,  and  the  purchase  is  not  made  until  after  such  time  has  ex- 
pired, or  at  different  times,  and  in  small  parcels ;  or  whether  it  is  to  be  made 
with  the  consent  of  trustees,  and  such  consent  has  not  been  applied  for ;  see 
Deacon  v.  Smith,  3  Atk.  329. 

The  doctrine  upon  this  subject  was  much  discussed  in  the  leading  ca.se  of 
Lechmere  v.  Earl  of  Carlisle,  3  P.  Wms.  227,  Ca.  t.  Talb.  80.  There  Lord 
Lechmere,  upon  his  marriage  with  Lady  Elizabeth  Howard,  daughter  of  the 
Earl  of  Carlisle,  covenanted  to  lay  out,  within  one  year  after  the  marriage, 
£6000,  her  portion,  and  £24,000,  (amounting  in  the  whole  to  £30,000,)  in 
the  purchase  of  freehold  lands  in  possession,  in  the  south  part  of  Great  Britain, 
with  the  consent  of  the  Earl  of  Carlisle  and  the  Lord  Morpeth,  to  be  settled 
on  Lord  Lechmere  for  life,  remainder,  for  so  much  as  would  amount  to  £800 
a  year,  to  Lady  Lechmere,  for  her  jointure,  remainder  to  first  and  other  sons 
in  tail  male,  remainder  to  Lord  Lechmere,  his  heirs  and  assigns  forever;  and 
Lord  Lechmere  also  covenanted,  that  until  the  £30,000  should  be  laid  out  in 
lands,  interest  should  be  paid  to  the  persons  entitled  to  the  rents  and  profits 
of  the  lands  when  purchased.     Lord  Lechmere  was  seised  of  some  lauds  in 

1  2  Vern.  709. 

'  And  again  aflSrmed  upon  a  rehearing,'30tb  of  Juue,  1715:  Reg.  Lib.  A.  1715,  fol.372. 


WILCOCKS     V.     WILCOCKS.  —  BLANDY     V.     WIDMORE.        605 

foe  at  the  time  of  his  marriage,  and  after  his  marriage  purchased  some  estates 
in  fee  of  about  £500  per  annum,  and  some  estates  for  lives,  and  other  rever- 
sionary estates  in  fee  expectant  on  lives,  and  contracted  for  the  purchase  of 
some  estates  in  fee  in  possession,  and  on  the  18th  of  June,  1727,  died  intestate, 
without  issue,  and  without  having  made  a  settlement  of  any  estate.  None  of 
the  purchases  or  contracts  were  made  by  Lord  Lechmere  with  the  consent  of 
the  trustees.  Upon  a  bill  being  filed  by  Mr.  Lechmere,  the  heir  of  Lord  Lech- 
mere, for  specific  performance  of  the  covenant,  and  to  have  the  £30,000  laid 
out  as  therein  agreed,  it  was  held  by  Sir  Joseph  Jekyll,  M.  R.,  that  he  was 
entitled  to  specific  performance,  and  that  none  of  the  land  which  was  permitted 
to  descend  to  the  heir  was  to  be  taken  in  satisfaction  or  part  performance  of 
the  covenant.  However,  on  appeal,  Lord  Talbot  reversed  his  Honor's  decree 
as  to  the  freehold  lands  purchased  in  fee  simple  in  possession  after  the  cove- 
nant, though  with  but  part  of  the  *£oO,000,  and  left  to  descend,  and 
these  were  ordered  by  the  Lord  Chancellor  to  go  as  a  satisfaction  pro  ■-  -• 
tanto,  or,  more  correctly  speaking,  they  were  to  be  considered  as  bought  in 
part  performance  of  the  covenant,  "As  to  questions  of  satisfactions,"  ob- 
served his  Lordship,  (see  Sugd.  V.  &  P.  Append.  1117,  11th  edit.,)  "where 
they  are  properly  so,  they  have  always  been  between  debtor  and  creditor  or 
their  representatives.  As  to  Mr.  Lechmere,  I  do  not  consider  him  as  a  cre- 
ditor, hut  (IS  standing  in  the  place  of  his  ancestor,  and  thereby  entitled  to  what 
would  have  vested  in  his  ancestor.  A  constructive  satisfaction  depends  on  the 
intention  of  the  party,  to  be  collected  from  circumstances.  But  then  the  thing 
given  must  be  of  the  same  kind,  and  of  the  same  or  a  greater  value.  The 
reason  is  plain;  for  a  man  may  be  bountiful  as  well  as  just;  and  if  the  sum 
given  be  less  than  the  debt,  it  cannot  be  intended  as  a  satisfaction,  but  may  be 
considered  as  a  bounty ;  and  if  the  thing  given  is  of  a  different  nature,  then, 
also,  as  the  intention  of  the  party  is  not  plain,  it  must  be  considered  as  a 
bounty.  But  I  do  not  think  the  question  of  satisfaction  properly  falls  within 
this  case,  for  here  it  turns  on  what  was  the  intention  of  my  Lord  Lechmere  in 
the  purchase  made  after  the  articles ;  for,  as  to  all  the  estates  purchased  pre- 
cedent to  the  articles,  there  is  no  color  to  say,  they  can  be  intended  in  perform- 
ance of  the  articles;  and  as  to  the  leasehold  for  life,  and  the  reversion  in  fee 
expectant  on  the  estates  for  life,  it  cannot  be  taken  they  were  purchased  in 
pursuance  of  the  articles,  because  they  could  not  answer  the  end  of  them.  But 
as  to  the  other  purchases,  (in  fee  simple  in  possession,  &c.,)  though  considered 
as  a  satisfaction  to  a  creditor,  yet  they  do  not  answer,  because  they  are  not  of 
equal  or  greater  value.  Yet,  why  may  they  not  be  intended  as  bought  by  him 
with  a  view  to  make  good  the  articles  ?  The  Lord  Lechmere  was  bound  to  lay 
out  the  money  with  the  liking  of  the  trustees,  but  there  was  no  obligation  to 
lay  it  out  all  at  once,  nor  was  it  hardly  possible  to  meet  with  such  a  purchase 
as  would  exactly  tally  with  it.  Parts  of  the  land  purchased  are  in  fee  simple 
in  possession,  in  the  south  part  of  Great  Britain,  and  near  to  the  family  estate. 
But  it  is  said  they  are  not  bought  with  the  liking  of  the  trustees.  The  inten- 
tion of  naming  trustees  was  to  prevent  unreasonable  purchases,  and  the  want 


606  PERFORMANCE. 


of  this  circumstance,  if  the  purchases  are  agreeable  in  other  respects,  is  no 
reason  to  hinder  why  they  should  not  be  bought  in  performance  of  the  articles. 
It  is  objected,  that  the  articles  say  the  land  shall  be  conveyed  immediately. 
It  is  not  necessary  that  every  parcel  should  be  conveyed  so  soon  as  bought,  but 
P^„r^-|  after  the  whole  was  purchased,  *for  it  never  could  be  intended  that 
there  should  be  several  settlements  under  the  same  articles.  Whoever 
is  entitled  to  a  performance  of  the  covenant,  the  personal  estate  must  be  first 
applied  so  far  as  it  will  go,  and  if  the  covenant  is  performed  in  part,  it  must 
make  good  the  deficiency.  But  where  a  man  is  under  an  obligation  to  lay  out 
£30,000  in  lands,  and  he  lays  out  part  as  he  can  find  purchases,  which  are 
attended  with  all  material  circumstances,  it  is  more  natural  to  suppose  these 
purchases  made  with  regard  to  the  covenant  than  without  it.  When  a  man 
lies  under  an  obligation  to  do  a  thing,  it  is  more  natural  to  ascribe  it  to  the 
obligation  he  lies  under,  than  to  a  voluntary  act,  independent  of  the  obligation. 
Then,  as  to  all  the  cases  of  satisfaction,  though  these  purchases  are  not  strictly 
a  satisfaction,  yet  they  may  be  taken  as  a  step  towards  performance  ;  and  that 
seems  to  me  rather  his  intention  than  to  enlarge  his  real  estate.  The  case  of 
WilcocJcs  V.  Wikocks,  (2  Vern.  558,)  though  there  are  some  circumstances  that 
are  not  here,  yet  it  has  a  good  deal  of  weight  with  me.  There  the  covenant 
was  not  performed,  for  the  estate  was  to  be  settled,  but  the  land  was  left  to 
descend,  and  a  bill  was  brought  to  have  the  articles  made  good  out  of  the  per- 
sonal estate;  to  which  it  was  answered,  that  the  £200  per  annum  was  bought, 
which  descended  to  you.  It  is  true  a  settlement  hath  not  been  made,  but  they 
were  bought  with  an  intention  to  make  a  settlement,  and  you  can  make  one. 
The  same  will  hold  as  strong  in  the  present  case,  that  these  lands  were  bought 
to  answer  the  purposes  of  the  articles,  and  fall  within  that  compass;  and  it  is 
not  an  objection,  to  say  they  are  of  unequal  value,  for  a  covenant  may  he  exe- 
cuted in  part,  though  it  is  not  so  in  satisfaction  ;  and  in  this  jycLrticidar  I  dif- 
fer from  the  Master  of  the  Rolls.  There  must  be  an  account  of  what  lands  in 
fee  simple  in  possession  were  purchased  after  the  articles  entered  into,  and  so 
much  as  the  purchase-money  of  such  lands  amounts  to  must  be  looked  on  in 
part  satisfaction  of  the  £30,000,  to  be  laid  out  in  land  under  the  articles,  and 
the  residue  of  the  £30,000  must  be  made  good  out  of  the  personal  estate." 
See  also,  Barham  v.  Earl  of  Clarendon,  10  Hare,  126. 

The  doctrine  has  also  been  extended  to  a  case  where  the  covenant  was  to 
pay  money  to  trustees,  to  be  laid  out  by  them  in  a  purchase  of  land.  8ee 
Sowdon  V.  Sowdon,  3  P.  Wms.  227,  reported  in  a  note  of  Mr.  Cox ;  S.  C,  1 
Bro.  C.  C.  582  ;  1  Cox,  165.  In  that  case,  by  marriage  settlement,  reciting 
that  R.  S.  had  actually  paid  to  the  trustees  a  sum  of  £1500,  and  had  also 
agreed  to  pay  them  a  further  sum  of  £500  at  least,  upon  the  trusts  after-men- 
P^qcf)-!  tioncd,  he  the  said  R.,  S.  covenanted  with  *the  trustees  that  he  would, 
within  six  months,  pay  the  said  further  sum  of  £500  at  the  least,  which 
said  sums  of  £1500  and  £500  were  to  be  applied  in  the  manner  thereinafter 
mentioned.  And  it  was  thereby  declared,  that  the  said  sums  of  money  were 
so  paid,  and  to  be  paid,  upon  trust  that  the  said  trustees  should,  as  soon  as 


WILCOCKS     V.     WILCOCKS.  —  BLANDY     V.     WIDMORE.      607 

conveniently  might  he,  with  the  consent  of  the  said  R.  S.,  lay  out  and  invest  the 
same,  either  together  or  in  parcels,  and  together,  with  or  without  any  further 
sum  to  be  advanced  by  the  said  R.  S.  in  the  purchase  of  freehold  lands  in  the 
county  of  Devon  j  and  that  such  lands,  when  purchased,  should  be  conveyed 
to  the  trustees  to  the  uses  of  the  marriage,  as  therein  mentioned.  Notwith- 
standing the  recital  in  the  settlement,  R.  S.  did  not  pay  the  £1500,  which, 
together  with  the  £500,  remained  unpaid  at  his  death.  Soon  after  the  mar- 
riage he  purchased  an  estate  in  the  county  of  Devon  for  £2150,  which  was 
conveyed  to  him  in  fee,  but  he  never  made  any  settlement  of  this  estate,  and 
died  intestate.  There  was  no  evidence  in  the  cause,  upon  which  the  Court 
thought  any  reliance  could  be  had ;  but  it  was  argued,  that  this  case  might  be 
distinguished  from  the  others,  inasmuch  as,  in  this  case,  the  husband  cove- 
nanted to  pay  the  money  to  the  trustees,  of  which  covenant  he  scarcely  could 
mean  a  performance,  when  he  made  a  purchase  himself.  However,  Sir  L. 
Kenyon,  M.  R.,  declared,  that  if  this  case  had  been  res  Integra,  he  should  have 
thought  the  distinction  worthy  of  great  consideration,  but  he  thought  this  case 
within  the  principle  established  by  Lechmere  v.  Earl  of  Carlisle,  that,  where 
a  man  covenants  to  do  an  act,  and  he  does  that  which  may  pro  tanto  be  con- 
verted to  a  completion  of  his  covenant,  he  shall  be  presumed  to  have  done  it 
with  such  intention  :  and  declared  the  estate  to  be  subject  to  the  trusts  of  the 
settlement.     See  also.  Trench  v.  Harrison,  17  Sim.  111. 

The  expenditure,  however,  by  a  tenant  for  life  of  a  sum  of  money  on  lands 
vested  in  trustees  will  not  be  taken  to  be  in  satisfaction  of  a  covenant  by  him 
to  pay  a  sum  of  money  to  the  trustees,  which  they  had  power  to  invest  in  the 
purchase  of  lands  to  be  held  upon  the  same  trusts  :  Horlock  v.  Smith,  17  Beav. 
572.     And  see  Mathias  v.  Mathias,  3  Jur.  N.  S.  429. 

The  principle  upon  which  Wilcocks  v.  Wilcocks,  and  Lechmere  v.  Lechmere 
were  decided,  has  been  held  to  apply  equally  to  the  case  where  the  obligation 
to  purchase  lands  arose  from  an  A  ct  of  Parliament.  Thus,  in  Tuhhs  v.  Broad- 
wood,  2  Russ.  &  My.  487,  where  a  tenant  for  life  sold  part  of  the  settled  estate 
under  the  authority  of  an  Act  of  Parliament,  which  directed  him  to  lay  out 
the  consideration-money  in  the  purchase  of  other  lands,  and  to  settle  them  to 
the  same  uses,  and  he  afterwards  ^purchased  lands  to  nearly  the  same  r*.T-q-i 
amount,  but  died  without  having  settled  them  accordingly,  leaving  -* 

them  to  descend  to  his  heir-at-law,  who  was  also  the  first  tenant  in  tail  in  re- 
mainder under  the  settlement,  it  was  held  by  Lord  Brougham,  that  the  pur- 
chase was  to  be  presumed  to  have  been  made  in  performance  of  the  obli- 
gation imposed  by  the  Act,  and  that  the  remainderman  could  not  recover 
the  value  of  the  lauds  sold  against  the  personal  estate  of  the  tenant  for  life, 
"  If,"  said  his  Lordship,  "  a  person,  by  the  provisions  of  an  Act  of  Parliament, 
disposes  of  lands,  and,  by  the  condition  under  which  he  receives  the  price,  is 
bound  to  lay  out  the  money  in  other  lauds,  to  be  settled  to  the  same  uses,  the 
presumption  is,  that  what  he  did  in  laying  out  that  money,  was  done  with 
reference  to  his  pre-existing  obligation." 

Where  a  person  upon  his  mai-riage  covenanted  with  trustees  to  settle  an 


608  PERFORMANCE. 


estate  upon  his  wife,  but  he  failed  to  do  so,  aud  subsequently  exchanged  the 
estate  for  another  and  the  sum  of  £1050,  it  was  held  that  the  estate  taken  in 
exchange,  and  the  sum  of  £1050  ought  to  be  taken  in  substitution  for  the 
estate  covenanted  to  be  settled,  aud  that  the  £1050  was  a  specialty  debt  under 
the  covenant :  Fowdrcll  v.  Jones,  2  Sm.  &  Giff.  3o5. 

And  it  is  no  objection  to  a  purchase  being  considered  as  a  part  performance, 
that  it  is  optional  to  settle  lands  or  a  rent-charge,  unless  the  intention  to  settle 
a  rent-charge  be  shown.  See  Deacon  v.  Smith,  3  Atk.  323,  328,  in  which 
case  Lord  Hardwicke  also  held,  that  the  assignment  of  a  mortgage  upon  the 
estate,  by  the  covenantor,  was  no  objection  ;  "  for,"  he  observed,  "  it  was  only 
continuing,  in  effect,  the  same  mortgage  upon  the  estate,  because  he  wanted 
to  take  up  money  to  complete  the  purchase." 

But  where  the  covenant  points  to  a  future  purchase  of  lands,  it  cannot  be 
presumed  that  lands,  of  which  the  covenantor  was  seised  at  the  time  of  the 
covenant,  descending  to  his  heir,  were  intended  to  be  taken  in  performance  of 
it :  Lechmere  v.  Lechmere,  Ca.  t.  Talb.  80.     And  see  Davys  v.  Howard,  5 

Bro.  P.  C.  552. 

It  cannot  be  presumed  that  property  of  a  diflFerent  nature  from  that  cove- 
nanted to  be  purchased  by  the  covenantor,  was  intended  as  a  performance. 
Thus,  leaseholds  for  lives  or  terms  of  years,  although  with  a  covenant  to  pur- 
chase the  fee,  or  estates  in  reversion  expectant  upon  lives,  unless,  perhaps,  the 
lives  fall  in  during  the  life  of  the  covenantor,  will  not  betaken  in  performance 
of  a  covenant  to  purchase  fee  simple  lands  in  possession.  See  Lechmere  v. 
JEarl  of  Carlisle,  3  P.  Wms.  227  ;  Lechmere  v.  Lechmere,  Ca.  t.  Talb.  80  ; 
^  Deacon  v.   Smith,  3  Atk.  323;   "^Whorwoody.  Whortoood,  1  Ves. 

^        -^   540  ;  Lewis  v.  Hill,  1  Ves.  274. 

So,  in  Finnell  v.  Hallett,  Amb.  106,  where  a  person  covenanted  to  purchase 
and  settle  lands  of  inheritance  on  his  wife  for  life,  without  impeachment  of 
waste,  with  remainder  to  the  issue  of  the  marriage,  and  he  afterwards  pur- 
chased the  moiety  of  a  house  and  a  copyhold  estate,  the  question  arose,  whether 
these  estates,  or  either  of  them,  were  applicable  in  part  satisfaction  of  the 
covenant ;  and  Lord  Hardwicke  was  clearly  of  opinion,  that  the  moiety  of  the 
house  was  not,  because  it  was  not  the  kind  of  estate  intended  by  the  articles; 
and  that  the  copyhold  estate  was  not  applicable,  because  the  wife  was  to  take 
the  estates  settled  for  life,  ivithmt  imj^eachmcnt  of  icaste.  Besides,  the  copy- 
hold estate  appeared  to  be  of  the  nature  of  horough  English,  and  therefore 
could  not  be  taken  as  part  satisfaction  to  an  eldest  son,  which  by  its  nature 
went  to  the  youngest.  But  where  there  was  a  covenant  generally  to  purchase 
lands,  the  purchase  of  copyhold  estate  was  held  a  part  performance  :  Wilkes  y. 
Wilkes,  5  Vin.  Abr.  293,  fol.  39 ;  but  see  Whoncood  v.  Whorwood,  1  Ves. 
540. 

As  a  covenant  is  construed  most  strongly  against  the  covenantor,  a  covenant 
by  him  to  secure  a  jointure  "  out  of  estates  he  should  thereafter  acquire,"  will 
be  a  charge  upon  an  estate  which  he  had  at  that  time  already  contracted  to 
purchase  :    Wardc  v.  Warde,  16  Beav.  103. 


WILCOCKS     V.     WILCOCKS,  —  BLANDY     V.     WIDMORE.       609 


A  covenant  to  purchase  lands  is  a  mere  specialty  debt,  and  will  not  create 
a  specific  lien  upon  lands  afterwards  purchased,  althoygh  the  presumption  may- 
arise  that  they  were  purchased  by  the  covenantor,  intending  them  to  go  in 
performance  of  the  covenant  in  his  marriage  articles,  and  will  not  affect  a  pur- 
chaser or  mortgagee  without  notice;  "  for  if  the  covenantor,"  as  observed  by 
Lord  Hardwicke,  ''had  sold  them  or  mortgaged  them,  it  would  have  .been 
evidence  of  a  different  intention,  and  would  therefore  have  taken  off  all  evi- 
dence of  his  intention  to  bind  them  by  the  articles  :"  Deacon  v.  Smith,  3 
Atk.  327.  And  other  specialty  creditors  cannot  complain  that  the  presump- 
tion arises,  that  lauds  were  purchased  iu  performance  of  a  covenant ;  for  it  is 
in  the  power  of  the  owner  of  an  estate  to  prefer  one  specialty  creditor  to 
another,  for  none  of  them  have  any  specific  lien  on  it :  Deacon  v.  Smith,  3 
Atk.  327. 

Notwithstanding  the  observation  made  by  Lord  Hardwicke  in  Deacon  v. 
Smith,  it  has  been  held  that  where  a  person  who  has  purchased  lands  in 
satisfaction  of  the  covenant  has  mortgaged  them,  the  equity  of  redemption 
will  be  liable  to  the  covenant.     Ex  j^ayte  Poole,  11  Jur.  1005. 

Where  the  presumption  arises  that  lands  were  bought  with  the  *in-  p^o^r-i 
tention  of  performing  a  covenant,  in  the  absence  of  fraud,  the  price 
paid  for  them  will  be  considered  their  value;  see  Tijrconnell  v.  DuJce  of 
Ancaster,  Amb.  239,  and  note ;  and  in  Finnell  v.  Hallett,  Amb.  106,  where 
a  person  in  his  marriage  articles  covenanted  to  buy  lands  of  the  clear  yearly 
value  of  £500,  an  estate  which,  when  it  was  purchased,  produced  £180  a-year, 
had  since  fallen  to  £150  a-year.  Lord  Hardwicke  directed  the  Master  to  in- 
quire what  was  the  yearly  value  of  it  at  the  death  of  the  covenantor,  at  which 
time  it  became  a  satisfaction  pro  tanto ;  and  said,  if  it  had  been  purchased  at 
the  time  of  the  marriage  articles,  the  value  should  have  been  taken  as  at  the 
time  of  the  purchase  ;  not  that  the  master  was  to  consider  it  at  the  rent,  sup- 
posing it  to  have  lessened  at  that  particular  time  by  any  accident,  such  as 
mortality  amongst  cattle ;  see  also  TTace  v.  BicJcerton,  3  De  G.  &  Sm.  751  • 
Horlock  V.  Smith,  17  Beav.  572. 

Where  trustees,  under  an  obligation  to  lay  out  money  in  land,  have  trust 
funds  in  their  hands,  any  purchase  by  them  will,  more  readily  than  in  ordi- 
nary cases,  be  taken  to  have  been  made  in  fulfilment  of  their  obligation  : 
Mathias  v.  Mathias,  3  Jur.  N.  S.  429.  And  where  trust  moneys  have  been 
improperly  invested  by  trustees,  it  will  be  followed  into  the  land  :  Phai/re  v. 
Perce,  3  Dow,  116 ;  Sugd.  Prop.  160.  So,  where  trustees  of  a  settlement, 
having  a  power  to  invest  money  with  the  consent  of  the  husband  and  wife, 
the  husband,  being  authorized  by  the  trustees  and  with  the  consent  of  his 
wife,  purchased  property  not  authorized  by  the  settlement,  it  was  held  that  as 
between  the  husband  and  the  trustees,  he  must  be  considered  to  have  purchased 
the  estate  for  them  :  French  v.  Harrison,  17  Sim.  111. 

Where  trust  money  was  laid  out  in  the  purchase  of  land,  pursuant  to  the 
trusts  of  a  settlement,  and  the  husband  advanced  a  further  sum  of  £500  and 
the  estate  was  conveyed  to  the  trustees,  without  any  notice  being  taken  of  the 

VOL.  II.— 39 


610  PERFORMANCE. 


fact,  that  part  of  the  purchase-money  had  been  advanced  by  the  husband,  it 
was  held  by  Lord  Langdale,  M.  R.,  that  the  husband  had  devoted  the  £500 
to  the  trusts  of  the  settlement,  as  an  advancement  to  the  parties  entitled  under 
it.  "In  a  case  like  this,"  said  his  Lordship,  "  where  the  father  of  a  family 
makes  a  purchase  for  the  purposes  of  his  marriage  settlement,  I  should  require 
very  strong  evidence  to  show  that  he  did  not  intend  it  for  the  benefit  of  all 
parties  entitled  under  it."      On^clci/  v.  Anstrnthcr,  10  Beav.  461. 

Covenant  to  leave  a  Sum  <if  Monci/.'^ — Upon  a  principle  analogous  to  that 
upon  which  the  former  class  of  cases  proceed,  it  has  long  since  been  settled, 
upon  the  authority  of  B/andi/  v.  WiJmore,  that,  if,  a  husband  covenants  to 
P^,qrp-i  *leave,  or  that  his  executor  shall ^ay,  to  his  widow,  a  sum  of  money, 
or  part  of  his  personal  estate,  and  he  dies  intestate  so  that  she  becomes 
entitled  to  a  portion  of  his  personal  property,  of  equal  or  greater  amount, 
under  the  statute,  such  distributive  share  will  be  a  performance  of  the  cove- 
nant, and  she  cannot  claim  both  :  Lee  v.  D' Aranda,  1  Ves.  1. 

If  the  distributive  share  be  less  than  the  sum  which  the  husband  covenants 
to  leave,  it  will  be  taken  to  be  a  part  performance  :  Garthsliore  v.  Chalie,  10 
Yes.  14,  IG  ;  and  it  does  not  go  upon  the  accident  of  the  wife  taking  out 
administration  or  not  :  Gartlishore  v.  Chalie,  10  Ves.  11,  12  ;  and  the  Court 
will  not  look  upon  the  slight  diiference  between  leaving  and  paying ;  or 
whether  payment  is  to  be  within  three  months  or  six  months  after  the  cove- 
nantor's death,  as  the  year  allowed  to  executors  and  administrators  to  retain 
property  in  their  hap/ls  is  for  convenience  merely,  and  does  not  prevent  vest- 
ing ;  and  if  a  case  was  produced  in  which  it  was  quite  clear  that  there  were 
no  debts,  the  Court  would  give  the  fund  to  the  party,  notwithstanding  there 
had  not  been  a  lapse  of  twelve  months  :  Garthshore  v.  Chalie,  10  Ves.  13  ; 
Lang  v.  Lang,  8  Sim.  465. 

So,  likewise,  where  the  covenant  is  to  pay  to  trustees,  the  distributive  share 
of  the  wife,  will  be  taken  in  performance  of  the  covenant.  Thus,  in  Lee  v. 
D'  Aranda,  3  Atk.  419  ;  S.  C,  1  Ves.  1,  L.,  by  articles  previous  to  his  mar- 
riage with  M.  C,  covenanted  that  he  would  in  his  lifetime,  by  will,  or  by 
some  sufficient  assurance,  grant  to  M.  C,  or  E.  D.  her  mother,  or  her  execu- 
tors or  administrators,  in  trust  for  M.  C,  for  her  separate  use,  £1000,  to  be 
.paid  to  M.  C.  after  his  decease,  if  she  should  survive  him  ;  and,  in  case  he 
should  not,  by  will  or  otherwise,  assure  to  M.  C.  the  sum  of  £1000,  his  exe- 
cutors should,  within  six  months  after  his  decease,  pay  her  that  sum  for  her  own 
use.  L.  died  intestate ;  and,  upon  the  question  being  raised,  whether  she  should 
have  the  £1000  and  her  distributive  share  also,  Lord  Hardwicke  decreed,  tliat 
she  was  not  entitled  to  the  £1000  as  a  debt  due  on  the  articles,  and  also  to  a 
distributive  share,  in  case  it  should  amount  to  be  more  than  £1000. 

A  general  covenant  by  a  'husband  to  pay  or  assign  a  moiety  of  real  and  per- 
sonal estate  to  his  widow,  will  be  in  part  performed  by  the  devolution  of  one- 
third  of  the  personalty  on  the  widow.  Thus,  in  Garthshore  v.  Chalie,  10 
Ves.  1,  there  was  a  covenant  in  a  marriage  scttleiuont  by  the  husband,  in  \]\(i 
event  of  his  death,  leaving  his  wife  surviving,  and  children,  within  six  months 


WILCOCKS     V.     WILCOCKS. — BLANDY     V.     WIDMORE.       Gil 

after  his  decease  to  convey,  pay,  and  assign  one  full  clear  moiety  of  all  sucli 
real  and  personal  estate  as  Le  should  be  *seised  and  possessed  of,  or  i-^okyt 
entitled,  to  her  at  his  decease.  Lord  Eldon,  upon  the  principle  of 
part  performance,  held  the  widow  not  entitled,  in  addition  to  the  moiety  under 
the  covenant,  to  a  third  of  the  residue  of  the  personal  estate  by  the  intestacy 
of  her  husband,  or,  in  other  words,  that  her  distributive  share,  under  the  Sta- 
tute of  Distributions,  was  to  be  taken  in  part  performance  of  her  husband's 
covenant. 

But  it  seems  that  a  gift  by  will,  either  of  a  sum  of  money  or  a  residue,  or 
part  of  a  residue,  will  not,  per  se,  be  considered  a  performance  of  a  covenant 
to  leave  a  widow  a  certain  sum ;  for  a  gift  by  will  prima  facie  imports  bounty, 
and  admits  a  presumption  of  an  intention  in  the  testator  to  augment  the  pro- 
vision under  the  covenant,  and  not  to  satisfy  or  perform  it.  See  and  consider 
Ilayncs  v.  3Iico,  1  Bro.  C.  C.  129;  Devese  v.  Fontet,  1  Cox,  188;  Prcc.  Ch. 
240,  n..  Finch's  edition. 

The  last-mentioned  cases,  however,  are  clearly  distinguishable  from  GoJd- 
smid  V.  Goldsmid,  1  Swanst.  211,  where,  although  the  testator  made  a  will, 
the  principle  of  the  decisions  in  cases  of  intestacy  was  applicable.  In  that 
case  Gr.  having,  by  marriage  articles,  covenanted  that,  if  he  died  in  the  life- 
time of  his  wife,  his  executors  should,  within  three  months  after  his  decease, 
pay  to  her  £3000,  by  his  will  gave  all  his  property  to  his  executors,  in  trust, 
after  payment  of  his  debts,  at  the  expiration  of  three  years  from  his  decease, 
to  divide  it  "  in  such  ways,  shares,  and  proportions  as  to  them  should  appear 
right."  On  G.'s  death,  during  the  life  of  his  wife,  the"  executors  having  died 
or  renounced,  his  property  became  divisible  according  to  the  Statute  of  Distri- 
butions. It  was  held,  by  Sir  Thomas  Plumer,  M.  II.,  that  the  widow's  dis- 
tributive share,  exceeding  £3000,  was  a  performance  of  the  covenant  in  the 
marriage  articles.  "  The  rule,"  observed  his  Honor,  "  is  clearly  this  :  that  the 
distributive  share  of  the  widow,  in  the  case  of  absolute  intestacy,  is  considered 
as  a  performance  of  a  covenant  by  which  the  husband  had  undertaken  that 
she  should  receive  a  fixed  sum  at  his  death,  provided  that  her  share  is  equal 
to  that  sum.  I  state  that  the  question  is  at  rest ;  because  I  consider  that  rule 
conclusively  established  by  the  case  of  Blandy\.  Widmore,  in  which  the  judg- 
ment of  Sir  John  Trevor  was  affirmed,  and,  on  a  re-hearing,  reaffirmed  by  Lord 
Cowper.  More  than  a  century  has  since  elapsed,  and  the  subject  has  been 
frequently  under  the  review  of  the  most  distinguished  Judges, — of  Lord 
Hardwicke,  Lord  Thurlow,  Lord  Alvanley,  and  the  present  Lord  Chancellor; 
and  I  am  warranted  by  the  expressions  of  his  Lordship  in  Garfhshore  v.  Chalte, 
(10  Ves.  1,)  when  I  say  that  case  is  unshaken.  The  rule  was  recog-  r^jjoroi 
*nized  by  Lord  Hardwicke,  in  Lee  v.  D'Aranda,  (1  Ves.  1 ;  3  Atk. 
419,)  and  again  in  Barrett  v.  Bechford,  (Prec.  Ch.  48,  Finch's  edit. ;)  and 
though  the  subsequent  authorities  of  Uaynes  v.  3Iico,  and  Devese  v.  Fontet, 
have  decided,  that,  in  the  case  of  testacy,  what  was  given  should  not  operate 
as  performance  or  satisfaction  of  what  was  due,  those  decisions,  grounded  on 
particular  circumstances,  are  so  far  from  impeaching  the  rule,  that  they  ex- 


Q12  PERFORMANCE. 


pressly  recognize  it.  The  only  question  now  is,  wlaether  a  distinction  can  be 
made  in  the  present  case,  the  widow  taking  her  distributive  share  under,  not 
an  absolute,  but  a  quasi  intestacy,  where  the  purpose  of  th<5  testator  being 
disappointed,  a  virtual  intestacy  ensues,  and  the  statute  is  the  guide  of  dis- 
tribution  Considering  the  question  of  performance  of  the  contract,  on 

what  principle  can  it  be  contended,  that  the  share  taken  under  a  quasi  intes- 
tacy, is  not  a  performance,  which  the  same  share  taken  under  absolute  intestacy 
indisputably  is  ?     In  this  case,  as  well  as  in  the  other,  the  widow  takes  pleno 
jure,  herself  being  administratrix,  and  precisely  the  same  sum.     Every  rule 
and  principle  established  in  the  former  cases,  applies  equally  when  the  widow, 
in  that  character,  receives  a  proportion  of  the  assets  by  operation  of  law,  ex- 
ceeding the  amount  which  she  was  entitled  to  receive  under  her  marriage  con- 
tract.    To  determine  that  this  is  not  a  performance  of  the  contract,  when,  in 
the  case  of  absolute  intestacy,  I  should  be  bound  to  determine  it  to  be  per- 
formance, would  be  to  proceed  on  those  nice  distinctions  so  strongly  reprobated 
by  Lord  Eldon,  (10  Ves.  12,  15,)  and  Lord  Hardwicke,  (3  Atk.  422,)  and 
which,  to  adopt  the  expression  of  the  latter,  '  would  never  stand  with  the 
reason  of  mankind.'     In  substance  the  widow  obtains  all  for  which  she  con- 
tracted ;  and  I  am  therefore  bound  to  say,  that  she  is  entitled  to  her  distribu- 
tive share,  but  not  in  addition  to  her  provision  under  the  marriage  contract." 
But  where  the  covenant  is  not  to  pay  a  gross  sum,  but  the  interest  of  a  sum 
of  money  for  life,  or  a  mere  life  annuity,  the  principle  upon  which  Blandy  v. 
Widmore  was  decided  will  not  apply.     See  Couch  v.  Strattoti,  4  Ves.  391, 
where  a  covenant  by  a  husband  to  pay  the  interest  of  a  sum  of  money  to  his 
widow,  for  life,  was  held  not  to  be  satisfied  by  her  distributive  share  under  his  in- 
testacy.    So  in  Salishiu-i/  v.  Salishurt/,  6  Hare,  526,  where  a  husband  cove- 
nanted by  his  marriage  settlement,  that,  after  his  decease,  his  heirs,  executors, 
or  administrators,  should  levy  and  raise  out  of  his  real  and  personal  estate  an 
annuity  of  £500,  and  that  he  would,  by  his  last  will  and  testament  in  writing, 
give,  bequeath,  and  secure  to  her  the  said  annuity  of  *£500 ;  upon  the 
L         -'  death  of  the  husband  intestate,  it  was  held  by  Sir  James  Wigram,  V.  C, 
upon  the  authority  of  Couch  v.  Stratton,  that  the  widow's  share  of  the  husband's 
personal  estate  under  the  Statute  of  Distributions,  was  not  to  be  taken  by  her 
as  a  performance  of  his  covenant,  cither  wholly  or  pro  tanto.     "  Taking,"  ob- 
serves his  Honor,  "  Blandy  v.  ^yidmore,  and  Lee  v.  D'Aranda  as  binding 
authorities,  and  taking  the  principle  of  those  decisions  to  be  such  as  is  stated 
by  Lord  Eldon,  in  Garthshore  v.  Chalie,  and  by  Sir  Thomas  Tlumer,  in  Gold- 
smid  V.  Goldsmid,  I  should  (if  Couch  v.  Stratton  were  out  of  the  way,)  con- 
clude that  intestacy  was  a  performance  of  the  contract,  as  well  in  the  case  of 
an  annuity,  as  in  the  case  of  a  gross  sum  of  money.     The  relation  between  the 
parties  exists  in  this  case,  by  reference  to  which,  a  very  singular  construction 
is  given  in  this  Court  to  a  contract,  the  language  of  which  would  otherwise 
have  no  such  effect ;  and  in  the  case  of  the  annuity,  as  in  the  other  case,  the 
effect  of  the  intestacy  is  to  put  the  annuitant  in  that  position  with  respect  to 
her  demand  against  the  estate  of  the  intestate,  as,  by  the  terms  of  the  con- 


WILCOCKS     V.     WILC0CK3. — BLANDT     V.     WIDMORE.       G13 

tract,  it  ought  to  be  in  at  the  moment  when  the  obligation  of  the  husband 
actually  to  perform  the  contract  arises,  that  is  to  say,  at  his  death.  But  then 
the  question  arises,  is  not  Couch  v.  Stratton  an  authority  the  other  way  ?  In 
that  case,  Blandy  v.  Widmore  and  Lee  v.  D' Aranda  ^yere  both  cited,  and  the 
case  was  argued  by  counsel  of  no  common  eminence.  In  that  case  it  seems  to 
have  been  admitted,  and  the  judgment  proceeded  on  the  assumption,  that  the 
rule  adopted  by  the  Court,  in  the  case  of  a  covenant  to  pay  a  gross  sum,  did 
not  apply  to  the  case  of  an  annuity.  Lord  Eldon  afterwards  gave  great  con- 
sideration to  the  case,  and  did  not  express  any  dissatisfaction  with  that  judg- 
ment. I  must  follow  the  authority  of  CoucIl  v.  Stratton,  which,  if  it  has  not 
settled  the  law,  can  only  be  altered  by  the  Lord  Chancellor.  I  treat  the  case 
as  one  in  which  performance  and  not  satisfaction  is  to  be  shown."  See  also, 
and  consider,  Wood  v.  Wood,  7  Beav.  183. 

Nor  will  the  rule  laid  down  in  Blandy  v.  Widmore  be  applicable  where  the 
husband  covenants  to  pay  a  sum  in  his  lifetime  ;  for  in  that  case  there  is  a  breach 
of  covenant  before  his  death,  and  a  debt  is  due  to  his  wife.  In  Oliver  v.  Brick- 
land,  or  Olicer  v.  Brighouse,  (cited  1  Ves.  1 ;  3  Atk.  420,  422,)  the  husband 
covenanted  to  pay  a  sum  within  two  years  after  marriage,  and  if  he  died,  his  exe- 
cutors should  pay  it.  He  lived  after  the  two  years  and  died  intestate,  leaving  a 
larger  sum  than  what  he  covenanted  to  pay  to  devolve  upon  his  widow,  as  her  dis- 
tributive share  ;  but  Sir  Joseph  Jekyll,  M.  R.,  *held,  that  it  was  not  to  r^opn-i 
be  taken  in  performance  of  the  covenant.  See  Garthshore  v.  Chcdie,  10 
Ves.  12,  where  Lord  Eldon  approves  of  this  case.  So,  in  Lang  v.  Lang,  8 
Sim.  451,  A.,  a  domiciled  Englishman,  married  a  lady  at  the  Mauritius,  where 
the  French  law  was  in  force.  By  their  settlement,  (which  was  in  the  French 
language  and  form,)  they  declared  that  they  intended  to  marry  according  to 
the  laws  of  England,  the  benefit  of  which  they  reserved  to  themselves  the 
power  of  claiming;  and  it  was  stipulated,  that  A.  should  invest  in  certain 
securities  £4000,  (the  property  of  the  lady,)  which  he  acknowledged  he  had 
received  from  her,  and  that  she  should  receive  the  income  on  her  sole  receipts, 
for  her  maintenance  and  personal  wants ;  and  that,  on  her  dying  in  A.'s  life- 
time without  leaving  issue  by  him,  the  capital  should  belong  to  him;  and  if 
A.  did  not  invest  the  £4000  in  his  lifetime,  she  was  to  be  at  liberty  to  take  it 
out  of  his  assets,  on  his  death,  with  a  proviso,  that  the  fund  should  go  to  the 
children  of  the  marriage,  in  the  event  of  their  being  any,  or  to  their  issue,  if 
they  should  die  under  twenty-one  leaving  issue ;  it  was  held,  by  Sir  L.  Shad- 
well,  V.  C,  upon  the  death  of  the  husband  without  issue  of  the  marriage,  and 
intestate,  that  the  widow  was  entitled  to  the  £4000,  and  also  to  her  distribu- 
tive share  of  his  personal  estate.  "  It  is  apparent,"  said  his  Honor,  "  on  the 
settlement,  that  there  is  a  provision  made,  not  only  for  the  wife,  but  also  for 
the  children  of  the  marriage,  in  a  given  event.  The  event  happened,  in 
which  it  is  provided  by  the  settlement,  that  the  £4000  should  go  to  the  wife. 
And  I  think,  that,  if  the  wife  had  filed  a  bill,  (living  the  husband,)  to  compel 
him  to  make  the  investment,  the  Court  would  have  considered  that  the  hus- 
band had  entered  into  a  contract,  which  was  to  be  fulfilled  in  his  lifetime,  and 


61-i  PERFORMANCE. 

would  have  compelled  liim  to  produce  the  £4000,  and  to  make  the  invest- 
ment. 

"  If  that  be  the  right  conclusion,  such  cases  as  Blamly  v.  Wkhnore,  and 
Lee  v.  Cox  and  D' Aranda,  have  no  application  to  the  subject;  because  those 
cases  decide  only,  that,  where  the  husband  has  bound  himself  to  fulfil  some 
oblicration  by  the  payment  of  money,  or  by  doing  an  act  equivalent  to  the  pay- 
ment of  money,  at  the  time  of  his  death,  (whether  it  be  at  the  time  of  his 
death,  or  within  six  months  after,  makes  no  difi"erence,)  that  obligation  is 
satisfied,  if,  by  dying  intestate,  he  allows  the  law  to  confer  a  benefit  on  the 
covenantee  equivalent  to  that  which  he  had  bound  himself  to  confer.  Those 
cases  have  no  reference  to  the  subject,  thei-e  being  in  this  case  an  obligation 
on  the  husband  to  produce  the  sum  in  question" 

-^  But  where  a  covenant  is  entire,  although  the  provision  for  the  wife 

"-  *be  such,  that,  if  part  of  it,  standing  alone,  might  be  considered  as 

performed  by  the  distributive  share  of  the  husband's  personalty  devolving  upon 
her  on  his  intestacy,  if  another  part  of  it  could  not  be  considered  as  so  per- 
formed, the  Court  will  not,  since  the  covenant  is  entire,  divide  it  by  holding 
one  part  performed,  and  the  other  part  not  performed.  Thus,  in  Couch  v. 
Stratton,  4  Ves.  391,  a  man,  in  his  marriage  settlement,  covenanted,  within 
three  calendar  months  after  his  decease,  to  pay  to  the  trustees  £6000,  with 
lawful  interest  from  the  day  of  his  death,  in  trust,  if  the  wife  should  survive 
him,  and  there  should  be  no  issue,  (which  event  happened,)  to  pay  £1500 
and  the  interest  thereof,  (part  of  the  £6000  and  interest,)  to  his  wife,  her 
executors,  administrators,  and  assigns,  and  to  pay  the  interest  of  the  remain- 
inn-  £4500  to  her  for  her  life,  upon  the  death  of  her  husband  intestate  :  it  was 
held,  by  Lord  Rosslyn,  that,  as  the  share  of  the  widow,  under  the  Statute  of 
Distributions,  was  not  a  performance  of  the  covenant  as  to  the  interest  of  the 
£4500  for  her  life,  it  could  not  be  considered  as  a  performance  of  that  part  of 
the  covenant  under  which,  in  the  event  which  happened,  she  was  entitled  to 
£1500  absolutely. 

The  two  classes  of  cases  which  have  been  considered  in  this  note  show  the 
importance  of  distinguishing  between  cases  of  performance,  to  which  those 
cases  belong,  and  cases  of  satisfaction  ;  that  is  to  say,  cases  of  the  satisfaction 
of  debts  by  legacies.  This  has  been  well  shown  by  Mr.  Cox,  in  his  learned 
note  to  Blandy  v.  Widmore,  1  P.  Wms.  324.  "  In  the  cases  on  the  subject 
of  satisfaction,"  he  observes,  "  in  which  the  contracting  party  is  supposed  to 
have  done  some  other  thing  in  lieu  of  the  thing  contracted  for,  and  which 
therefore  depend  more  particularly  on  the  implied  intention  of  the  party,  several 
rules  of  presumption  have  been  adopted  which  do  not  seem  to  apply  to  the  cases 
of  performance.  (Vide  Eastwood  v.  Vinl-e,  2  P.  Wms.  016.)  In  cases  of 
satisfaction  the  presumption  will  not  hold  where  the  thing  substituted  is  less 
beneficial,  (either  in  amount  or  certainty,  or  time  of  enjoyment,  or  otherwise,) 
than  the  thing  contracted  for,  since  satisfaction  implies  the  doing  of  something 
equivalent,  and  the  presumption  is  so  much  weakened  where  the  thing  substi- 
tuted is  not  equivalent  to  the  ihin^  contracted  for,  that  ^  part  satisfaction  will 


WAKE     V.     COXYERS.  615 

not  be  inteuded;  whereas  in  cases  where  the  tlciivj  done  can  be  considered  as 
a  part  performance  of  the  thing  contracted  for  it  shall  be  so  taken."  And 
see  Decese  v.  Fontet,  Prcc.  Ch.  240,  n.,  and  the  remarks  on  that  case,  and  on 
the  distinction  between  cases  of  performance  and  satisfaction,  in  Gold&mid  v. 
Goldsmld,  1  Swanst.  220,  221. 


CONFUSION    OF    BOUNDARIES. 

*WAKE  V.  CONYERS.  [*362] 

MAY  19;  JUNE  16,  1759. 
REPORTED    1    EDEN,    331.^ 

Boundaries.] — All  cases  ichere  the  Court  has  entertained  hills  for  estallish- 
ing  boundaries,  have  been  where  the  soil  itself  was  in  question,  or  there 
might  have  been  a  midtiplicity  of  suits. 

The  Court  has  no  poioer  as  of  course  to  issue  co7nmissions  to  fix  the  boundaries 
of  legal  estates.  Some  eqxdty  must  be  superinduced  by  the  acts  of  the  par- 
ties, as  some  particidar  circumstances  of  fraud ;  or,  confusion,  where  one 
party  has  ploughed,  too  near  the  other,  or  the  like. 

Bill  to  ascertain  the  boundaries  of  two  manors  dismissed,  there  being  no  dis- 
pute as  to  the  soil. 

The  defendants,  John  Conyers,  Esq.,  as  tenant  for  life,  his  wife,  Lady- 
Henrietta,  as  entitled  after  his  death  to  her  jointure,  and  his  son,  an  infant, 
as  tenant  in  tail,  were  entitled  to  the  manor  of  Epping,  and  also  to  the  free- 
hold of  certain  lands  next  adjoining  to  it,  lying  in  the  manor  of  Waltham;  the 
boundary  lines  of  the  two  manors  passing  through  Mr.  Conyers'  park.  He 
had  cut  down  certain  trees,  which,  it  was  alleged  by  the  bill,  were  standing  on 
the  line,  and  were  boundary  marks. 

The  present  bill  was  filed  by  Sir  William  Wake,  as  prochein  amy  to  his 
three  infant  sons,  who  were  tenants  in  tail  successively  of  the  manor  of  Wal- 
tham,  praying  that  the  boundary  of  the  manor  of  Waltham,  so  far  as  the  samp 
abuts  on  the  manor  of  Epping,  might  be  fixed  and  set  out,  and  that  a  com- 
mission might  issue  for  that  purpose ;  and  that  the  defendant  John  Conyers 
might  set  up  new  boundary  marks  in  the  room  of  those  which  he  had  cut  down 
and  destroyed. 

*Mr.  Conyers  by  his  answer  admitted  the  cutting  down  of  certain   ^ 

.  r*3631 

trees,  but  denied  that  they  were  boundary  marks ;  though  he  sub-   L         J 

mitted  to  have  the  boundaries  ascertained  and  settled,  and  that  marks  might 

be  set  up  to  perpetuate  such  boundaries. 

1  2  Cox,  3G0,  Hill's  MSS. 


616  CONFUSION     OF     BOUNDARIES.  , 

^On  tlie  opening,  the  Lord  Keeper  (Henley)  objected  to  the  nature  of  the 
suit,  as  being  merely  to  settle  the  boundaries  of  the  manor.  He  said  he  did 
not  think  the  Court  had  jurisdiction,  and  desired  it  to  stand  over,  for  counsel 
to  consider  whether  there  was  suflScient  equity  for  the  Court  to  entertain  the 
bill. 

^It  came  on  again  this  day. 

The  Attorney-General  (Sir  CharlrR  Pratt,')  Wdhraham,  and  Broicnino,  for 
the  phiintiifs. — This  is  not  merely  a  bill  of  peace;  though,  as  far  as  the  juris- 
diction of  the  Court  is  concerned,  it  is  usual  and  proper  to  establish  peace  and 
good  neighborhood.  But  it  is  a  case  peculiarly  coming  under  the  most  favor- 
able jurisdiction  of  this  Court;  which  is  to  give  a  remedy  where  there  is  none 
at  law.  The  law  is  defective.  The  boundary  cannot  be  set  out.  It  can  only 
be  tried  by  action  of  trespass  or  ejectment,  which  can  do  no  more  than  settle 
the  local  trespasses ;  while  a  boundary  line  extending  a  mile  or  two,  may  be 
disputed  inch  by  inch. 

There  is  no  objection  to  this  bill,  as  being  merely  a  bill  to  settle  boundaries. 
Bills  to  settle  boundaries  have  been  entei-tained  in  this  Court  from  very  ancient 
times :  Tothill,  126,  127 ;  so  early  as  the  reign  of  James  the  First,  Id.  84, 
210;  Bowman  v.  Yeat,  cit.  1  Ch.  Ca.  146;  there  was  a  rent  charge,  and  the 
orantce  did  not  know  where  to  distrain,  on  account  of  the  confusion  of  boun- 
daries :  a  commission  was  ordered.  So,  Harding  v.  Countess  of  Suffolk,  Ch, 
Kep.  63  ;  Codes  v.  Folei/,  1  Vern.  359.  In  the  case  of  TJie  Duhe  of  Dorset  v. 
Serjeant  Girdler,  Prec.  Ch.  531,  a  demurrer  to  a  bill,  to  perpetuate  testimony 
on  the  ground  of  a  menace  being  used  to  disturb  the  plaintiff  in  a  sole  fishery, 
was  overruled ;  and  on  this  ground,  because  he  could  not  proceed  at  law.  So 
in  this  case,  *what  is  prayed  by  the  bill  cannot  be  done  at  law :  the 
[•rfo4J  (jpfg^djint  has  destroyed  the  last  remaining  boundary  marks,  and  by 
his  answer  consents  that  they  may  be  set  out.  The  only  difference  between 
this  and  the  common  case  is,  that  there  is  no  dispute  about  the  soil,  which  is 
confessedly  Mr.  Conyers' ;  and  it  may  be  asked  upon  that,  cui  bono  to  fix  the 
line  ?  The  answer  to  that  is  the  manorial  rights ;  a  manor  has  a  seignory ; 
lands  escheat;  the  lord  has  a  right  to  treasure-trove,  to  deodands,  to  the  game. 
The  only  difference,  then,  is  the  value.  In  a  hundred  years'  time,  the  bound- 
aries will  be  confounded  and  lost  unless  this  commission  be  granted. 

Perrot  and  Iloskins,  for  the  defendants. — This  bill,  under  pretence  of  esta- 
blishing boundaries,  is,  in  fact,  to  settle  manerial  rights.  It  is  said,  that 
every  question  for  the  settling  of  boundaries  is  a  proper  subject  for  the  juris- 
diction of  this  Court.  That  is,  however,  not  the  case.  Those  cases  which 
have  been  cited,  in  which  a  man,  having  joint  occupation,  has  confounded  the 
boundaries,  have  turned  upon  the  fraud  which  has  been  relieved  against.  A 
similar  principle  has  given  the  Court  jurisdiction  in  the  cases  of  rent-charge. 
As  to  the  loss  of  evidence,  if  any  injury  arises  to  the  plaintiffs  from  that,  it 

I  May  19,  1750.  ^  Juno  IC,  ITSO. 


WAKE     V.     CONYERS.  617 

will  be  from  tlieir  own  laches,  in  not  making  perambulations.  This  does  not 
come  under  the  common  case  of  issues,  where  enjoyment  is  decreed  accord- 
ingly.    It  is  an  incorporeal  hereditament,  and  that  cannot  be  done. 

^LoRD  Keeper  Henley. — This  bill  is  merely  for  ascertaining  the  bound- 
aries of  these  two  manors,  and  is  intended  to  bind  the  inheritance  of  the  par- 
ties forever.  It  struck  me  as  new,  upon  the  opening.  I  have  been,  ever 
since  I  sat  here,  extremely  jealous  of  the  jurisdiction  of  this  Court  over  legal 
inheritances.  I  was,  therefore,  desirous  that  some  precedent  should  be  pro- 
duced, to  show  me  that  this  Court  could  entertain  a  bill  of  this  nature,  to  settle 
the  boundaries  of  an  incorporeal  inheritance ;  but  none  such  has  been  pro- 
duced. There  have,  since  I  sat  *here,  been  several  FBillsl  to  fix 
boundaries  where  a  right  to  the  freehold  of  the  soil  has  been  inciden-  L  ^  J 
tal.  But  I  have  seen  such  frightful  consequences  arising  from  them,  that  I 
think  these  suits  are  very  far  from  deserving  encouragement.  They  originally 
came  into  this  Court  under  the  equity  of  preventing  multiplicity  of  suits;  yet 
in  those  cases  I  have  observed  that  they  have  been  sometimes  attended  with 
more  expense  than  if  all  the  suits  which  they  apprehended,  and  which  they 
were  brought  to  prevent,  had  actually  been  tried  at  law. 

Hitherto  these  disputes  have  been  only  between  persons  of  great  fortune. 
But  the  consequences  have  been,  that  the  parties  have  been  eager  to  come 
into  this  Court,  without  any  attention  being  paid  to  see  whether  the  prayer 
of  the  bill  applies  properly  to  the  jurisdiction.  An  issue  is  directed,  and 
after  going  down  to  the  Assizes  at  a  very  great  expense,  and  a  verdict  being 
found  for  one  party,  the  other  is  dissatisfied,  and  a  new  trial  is  directed.  I 
was  extremely  unwilling  to  grant  the  last  new  trial,  in  the  case  of  Tlie  Earl 
of  Darlington  v.  Bowes,  (1  Eden,  270;)  but  on  inquiring  of  the  bar  whether 
there  was  any  instance  of  a  decree  made  upon  one  verdict  only,  none  could 
be  produced ;  and  if  there  were  any,  they  were  so  few,  that  they  could  not 
be  remembered.  I  therefore  thought  myself  bound  by  the  current  of  opinions 
to  grant  it.  But  I  am  determined,  if  any  such  case  should  ever  come  before 
me  again,  to  consider  it  in  a  different  light,  and  to  have  the  matter  more  fully 
inquired  into,  and  prevent,  if  possible,  an  expense,  which  is  a  reproach  to  the 
law. 

All  the  cases  where  the  Court  has  entertained  bills  for  estahlishing  bounda- 
ries, have  been  where  the  soil  itself  was  in  question,  or  where  there  might  have 
been  a  multiplicity  of  suits. 

The  Court  has,  in  my  opinion,  (and  if  parties  are  not  satisfied,  they  have 
resort  elsewhere,)  no  power  to  fix  the  boundaries  of  legal  estates,  unless  some 
equity  is  superinduced  by  the  act  of  the  parties,  as  some  jmrticidar  circum- 
stance of  fraud,  or  confusion,  where  one  party  has*ploughed  too  near  r-^^^^^ 
the  other,  or  the  like  ;  nor  has  this  Court  a  power  to  issue  such  com-  L  -* 
missions  of  course,  as  here  prayed. 

1  Afterwards  Lord  Chancellor  aud  Earl  of  Nortbin;]rton. 


618  CONFUSION     OF     BOUNDARIES. 


In  this  case,  it  is  said  there  is  no  legal  remedy,  and  therefore  there  must 
be  an  equitable  one ;  but  this  does  not  follow  unless  there  is  an  equitable  right. 
If  there  is  a  legal  right,  there  must  be  a  legal  remedy ;  and  if  there  is  no 
legal  right,  there  can,  in  this  case,  be  no  equitable  one. 

It  is  said,  that,  in  some  future  time,  there  may  be  a  casual  right,  such  as 
escheat,  treasure  trove,  &c. ;  but  am  I  to  countenance  such  a  suit  as  this  be- 
fore there  is  any  such  right,  merely  because  it  may  happen,  though,  when  it 
does  happen,  it  may  perhaps  be  such  a  right  as  the  parties  will  not  think  it 
worth  their  while  to  contend  for? 

If  I  were  to  make  this  a  precedent,  it  would  be,  in  effect,  to  issue  commis- 
sions to  settle  boundaries  all  over  the  kingdom ;  for  if  of  manors,  why  not  of 
honors,  of  hundreds,  and  all  other  inferior  denominations  of  districts  ?  I 
shall  always,  while  I  have  the  honor  to  sit  here,  be  very  attentive  to  prevent 
the  subject  from  great  waste  of  expense  about  matters  by  no  moans  adequate 
to  it.  Should  I  entertain  such  a  bill  as  this,  I  should  put  it  in  the  power  of 
every  opulent  lord  of  a  manor  to  distress,  if  not  ruin,  not  only  a  poor  man, 
but  even  a  man  of  moderate  fortune,  whose  estate  happens  to  border  upon  his ; 
for  these  suits  are  often  attended  with  £2000  or  £3000  expense — a  dishonor 
to  justice. 

In  order  to  give  this  Court  jurisdiction,  there  must  appear  some  equitable 
circumstances  in  tJie  case.  I  know  of  no  boundary  marks  to  a  manor  in 
another's  soil.  The  trees  were  Mr.  Conyers'  own  :  he  had  a  right  to  cut 
them  down;  and  if  the  plaintiffs  are  afraid  of  losing,  in  the  course  of  time, 
the  evidence  of  the  boundaries  of  their  manors,  they  may  preserve  it  by  per- 
ambulations as  often  as  they  please  :  but  I  cannot  fix  the  limits  of  a  legal  right 
(if  any,)  unless  the  jurisdiction  of  this  Court  is  superinduced  by  some  equit- 
able circumstances,  which  it  is  not  in  this  case. 

^Another  consideration  is,  that  the  plaintiffs  are  infants,  and  so 
t  -I  is  one  of  the  defendants ;  and  shall  I  send  the  infant  plaintiffs  be- 
forehand, when  they  know  not  the  value  of  their  estate,  to  bind  the  inherit- 
ance quia  timent,  under  the  protection  of  the  father,  who  is  not  privy  in  estate 
to  them  ?     I  am  well  satisfied  that  this  bill  ought  to  be  dismissed. 


Although  the  jurisdiction  of  the  Court  to  issue  a  commission  to  ascertain 
boundaries  is  very  ancient,  (3IuUineux  v.  Mullineux  ;  Pickering  v.  Kemjiton, 
Toth.  39;  Spycr  v.  Spj/er,  Nels.  14;  Boteler  v.  Spelman,  Rep.  t.  Finch  96; 
Wintle  v.  Carpenter,  Rep.  t.  Finch,  462;  Glj/nn  v.  Scawen,  Rep.  t.  Finch, 
289,)  its  origin  is  by  no  means  free  from  doubt. 

The  Lord  Keeper,  in  the  principal  case,  was  of  opinion,  that  suits  to  deter- 
mine boundaries  originally  caijie  into  the  Court  of  Chancery  under  the  equity 
of  preventing  multiplicity  of  suits;  but  Sir  W.  Grant,  M.  R.,  in  a  case  where 
it  became  necessary  to  inquire  by  what  principles  the  Court  is  guided  in  grant- 
ing a  commission  of  this  description,  observes,  that  "there  are  two  writs  in 
the  register,  (since  abolished,  see  3  &  4  AVill.  4,  c.  27,  s.  36,)  concerning  the 


WAKE     V.     CONYERS.  619 


adjustment  of  controverted  boundaries,  from  one  of  which  it  is  probable  that 
the  exercise  of  this  jurisdiction  by  the  Court  of  Chancery  took  its  commence- 
ment. The  first  is  the  writ  de  rationalibus  divisis,  (Reg.  Brev.  157,  b.) ;  the 
other,  the  writ  de  perambulatione  facienda,  (Reg.  Brev.  lb.)  Both  Lord 
Northington  and  Lord  Thurlow,  without  referring  to  this  writ  or  commission 
as  the  origin  of  the  jurisdiction  of  the  Court,  have  yet  expressed  an  opinion, 
that  consent  was  the  ground  on  which  it  had  been  at  first  exercised.  The 
next  step  would  probably  be,  to  grant  the  commission  on  the  application  of 
one  party  who  showed  an  equitahlc  ground  for  obtaining  it ;  such  as,  that  a 
tenant  or  copyholder  had  destroyed,  or  not  preserved,  the  boundaries  between 
his  own  property  and  that  of  his  lessor  or  lord.  And  to  its  exercise  on  such 
an  equitable  ground,  no  objection  has  ever  been  made :"  Sjicer  v.  Crav;ter,  2 
Mer.  416. 

It  is  not,  however,  improbable,  that  equity,  which  has  borrowed  so  largely 
from  the  civil  law,  may  have  assumed  jurisdiction  to  settle  boundaries  from 
the  proceeding  in  that  law  known  as  actio  finium  regundorum  :  see  Dig.  lib. 
X.,  tit.  1,  1.  1 ;  Domat,  b.  XL,  tit.  6,  s.  1,  2.  Doubtful,  however,  as  the  ori- 
gin of  the  jurisdiction  may  be,  it  is  certain  that  it  has  been  viewed  with  ex- 
treme jealousy  by  modern  *equity  judges,  who  have  always  been  de-  ^opn-i 
sirous  that  the  rights  of  parties  should,  where  practicable,  be  tried  ■-  -^ 
and  determined  in  the  ordinary  legal  mode.  In  short,  although  the  Court,  in 
some  cases,  has  granted  commissions  or  directed  issues  on  no  other  apparent 
ground  than  that  the  boundaries,  even  of  manors,  were  in  controvers}^,  it  is 
now  clear  that  a  confusion  of  boundaries  furnishes,  per  se,  no  ground  for  the 
interposition  of  the  Court  :  the  rule  now  acted  upon  is  that  laid  down  by  the 
Lord  Keeper  in  the  principal  case,  "that  the  Court  has  no  Jurisdiction  to  fix 
the  boundaries  of  legal  estates,  unless  some  equity  is  superinduced  hy  the  act 
of  the  parties:"  see  Speer  v.  Crawter,  2  Mer.  418;  0' Hara  v.  Strange,  11 
Ir.  Eq.  Rep.  262 ;  Ireland  v.  Wilson,  1  Ir.  Ch.  Rep.  623. 

In  Athins  v.  Hatton,  2  Anst.  386,  the  rector  of  a  parish  filed  a  bill  for  an 
account  of  tithes,  and  to  have  a  commission  to  settle  the  boundaries  of  the 
parish  and  the  glebe.  Some  confusion,  it  seems,  had  arisen  from  the  negli- 
gence of  both  parties  in  not  keeping  their  rights  distinct.  The  bill,  however, 
so  far  as  it  related  to  the  commission  to  set  out  the  boundaries,  was  dismissed 
with  costs.  "The  plaintifi","  observed  Macdonald,  C.  B.,  "here  calls  upon 
the  Court  to  grant  a  commission  to  ascertain  the  bounds  of  the  parish,  upon 
the  presumption  that  all  the  land  which  would  be  found  within  those  boun- 
daries would  be  titheable  to  him.  That  is,  indeed,  a  prima  facie  inference, 
but  by  no  means  conclusive  ;  and  there  is  no  instance  of  the  Court  ever  grant- 
ing a  commission  in  order  to  attain  a  remote  consequential  advantage.  It  is 
a  jurisdiction  which  courts  of  equity  have  always  been  very  cautious  of  exer- 
cising  A  commission  is  also  prayed  to  set  out  the  glebe  land.     It 

appears  that  the  plaintiff  has  a  full  equivalent  for  every  piece  of  glebe  that 
ever  belonged  to  the  rectory;  so  that,  if  the  exact  metes  and  bounds  are  un- 
known, he  has  already  the  full  effect  of  a  commission  :  if  they  are  known, 


G20  cox  FUSION     OF     BOUNDARIES. 

and  any  part  not  delivered  up  to  liim,  his  remedy  is  at  common  law ;  lie  lias 
made  no  case  for  our  interference." 

In  *S'^  Lul-es  V.  St.  Leonard's,  cited  2  Anst.  395,  a  bill  was  filed  by  tlie 
parish  of  St.  Luke's  to  avoid  confusion  in  making  their  rates,  and  prayed  a 
commission  to  fix  their  boundaries  for  that  purpose.  A  number  of  houses  had 
been  built  upon  land  formerly  waste,  and  it  was  doubtful  to  which  parish  each 
part  of  the  waste  belonged.  Lord  Tliurlow  refused  to  interfere,  and  observed, 
that  the  greatest  inconvenience  might  arise  from  doing  so;  for  if  that  com- 
mission were  granted,  and  the  bounds  set  out  by  the  commissioners,  any  other 
parties,  on  a  different  ground  of  dispute,  might  equally  well  claim  another 
commission ;  these  other  commissioners  might  make  *a  different  re- 
L  -^  turn,  and  so,  in  place  of  settling  differences,  endless  confusion  would 
be  created.  In  the  note  of  this  case  in  Brown's  Chancery  Cases,  (vol.  i.,  p. 
41,)  Lord  Thurlow  is  reported  to  have  said,  that  if  he  should  entertain  a  bill, 
and  direct  an  issue  in  such  a  case  as  this,  he  did  not  see  what  case  would  be 
peculiar  to  the  courts  of  law.  He  did  not  know  how  to  extract  a  rule  from 
the  Mayor  of  York  v.  Pilkington,  (2  Atk.  302.)  Where  there  was  a  com- 
mon right  to  be  tried,  such  a  proceeding  was  to  be  understood  :  the  boundary 
between  the  two  jurisdictions  was  apparent.  That  is  the  case  where  the  tenants 
of  a  manor  claim  a  right  of  common  by  custom,  because  the  right  of  all  the 
tenants  of  the  manor  is  tried  by  trying  the  right  of  one ;  but  in  this  case,  he 
saw  no  common  right  which  the  parishioners  had  in  the  boundaries  of  the 
parish.  It  would  be  to  try  the  boundaries  of  all  the  parishes  in  the  kingdom, 
on  account  of  the  poor-laws.  He  apprehended  these  issues  had  usually  been 
directed  by  consent  of  the  parties :  S.  C,  2  Dick.  550,  nom.  Waring  v.  Uo- 
tham. 

In  Miller  v.  Warmington,  1  J.  &  W.  484,  a  termor  having,  by  himself  or 
his  under-tenants,  suffered  the  boundaries  between  the  demised  premises  and 
contiguous  lands  of  his  own  to  become  confused,  he  was  held  not  entitled, 
after  the  expiration  of  the  term,  to  a  commission  to  ascertain  them,  in  opposi- 
tion to  the  assignee  of  the  lessor,  who  then,  and  had  since,  continued  in  the 
possession  of  both,  it  not  being  shown  that  such  possession  was  improperly 
obtained.  So,  in  Speer  v.  Crawler,  2  Mer.  417,  Sir  W.  Grant,  M.  R.,  refused 
to  issue  a  commission  to  ascertain  the  boundaries  of  manors,  observing,  "  In 

Wake  V.  Conyers,  Lord  Northington  held,  that  it  was  in  the  case  of  manors 
that  the  exercise  of  the  jurisdiction,  which  (he  says)  '  had  been  assumed  of 
late,'  was  peculiarly  objectionable.  He  refused  either  to  grant  a  commission 
or  to  direct  an  issue.  So  did  Lord  Thurlow,  in  the  case  of  two  parishes,  St. 
Luke's  V.  St.  Leonard's,  (2  Anst.  38G-395.)     In  the  same  case,  of  Wake  v. 

Conyers,  Lord  Northington  says,  that,  in  his  apprehension,  this  Court  has 
simply  no  jurisdiction  to  settle^  the  boundaries  even  of  land,  unless  some  equity 
is  superinduced  by  the  acts  of  tlie  parties.  I  concur  in  that  opinion,  and 
think  that  the  circumstance  of  a  confusion  of  boundaries  furnishes  per  se  no 
ground  for  the  interposition  of  the  Court." 

Wliat  is  a  sufficient  Ground  for  issuivg  a  Commission  or  directing  an  Is- 


WAKE     V.     CONYERS.  621 


s?<e.] — If  the  confusion  of  boundaries  lias  been  occasioned,  not  by  tlie  negli- 
gence of  both,  but  by  the  fraud  of  one  of  the  parties,  where,  for  instance,  he 
has  been  gradually  encroaching,  by  ploughing  or  digging  too  near  to  the 
*other,  with  the  intention  of  obliterating  the  boundaries,  a  court  of 
equity  will  interfere:  Wintlev.  Carjicnter,  Rep.  c.  Finch,  462;  3Iar-  •-  -^ 
quis  of  Bute  v.  Glamorganshire  Canal  Covipany,  1  Ph.  681.  This  was,  ac- 
cording to  the  opinion  of  Lord  Chief  Baron  Macdonald,  the  ground  of  the 
decision  of  the  House  of  Lords,  in  Rouse  v.  Barker j  (4  Bro.  P.  C.  660,  Toml, 
edit.)     See  Atkins  v.  Eatton,  Anst.  396. 

Where  such  a  relation  exists  between -two  parties,  as  that  of  tenant  and 
landlord,  which  makes  it  the  duty  of  the  tenant  to  preserve  the  boundaries, 
if  he  permits  them  to  be  destroyed,  so  that  the  landlord's  land  cannot  be  dis- 
tinguished from  his,  and  restored  specifically,  he  will,  even  in  the  absence  of 
fraud  on  his  part,  be  compelled  to  substitute  land  of  equal  value,  the  land  or 
its  value  being  ascertained  by  commission.  "  It  has  been  long  settled,"  ob- 
serves Lord  Eldon,  "  and  that  law  is  not  now  to  be  unhinged,  that  a  tenant 
contracts,  among  other  obligations  resulting  from  that  relation,  to  keep  dis- 
tinct from  his  own  property,  during  his  tenancy,  and  to  leave  clearly  distinct 
at  the  end  of  it,  his  landlord's  property,  not  in  any  way  confounded  with 
his  own.  This  is,  therefore,  a  common  equity,  that  a  tenant,  having  put  his 
landlord's  property  and  his  own  together,  for  his  own  convenience,  in  order  to 
make  the  most  of  it  during  his  tenancy,  is  bound,  at  the  end  of  the  term,  to 
render  up  specifically  the  landlord's  land,  and  if  he  cannot,  that  a  commission 
shall  issue  from  a  court  of  equity,  to  inquire  what  were  the  lands  of  the  land- 
lord, the  Court  taking  care,  to  the  intent  that  the  tenant  may  discharge  his 
obligation  to  do  what  is  right  as  to  the  possession  in  the  meantime ;  and  if 
the  tenant  has  so  confounded  the  boundaries,  subdividing  the  land  by  hedges 
and  stones,  and  destroying  the  metes  and  bounds,  so  that  the  landlord's  land 
cannot  be  ascertained,  the  Court  will  inquire  what  was  the  value  of  the  land- 
lord's estate,  valued  fairly,  but  to  the  utmost,  as  against  that  tenant,  who  has 
himself  destroyed  the  possibility  of  the  landlord's  having  his  own  :"  Attorney- 
General  V.  Fullerton,  2  V.  &  B.  264.  And  see  Glynn  v.  Scawen,  Rep.  t. 
Finch,  239 ;  Wintle  v.  Carpenter,  Rep.  t.  Finch,  462  ;  Aston  v.  Lord  Exeter, 
6  Ves.  293;  Duke  of  Leeds  v.  Earl  of  Strafford,  4  Ves.  180;  Grierson  v. 
Eyre,  9  Ves.  345;  Godfrey  v.  Littel,  1  Russ.  &  My.  59;  2  Russ.  &  My.  630. 
And  it  seems  that  the  same  result  would  follow,  if  the  confusion  of  the  boun- 
daries was  occasioned  by  a  tenant  for  life,  (Attorney- General  v.  Stephens,  6 
De  G.  Mac.  &  Q.  133 ;)  or  where  confusion  of  the  boundaries  of  manors  was 
occasioned  by  the  acts  or  neglect  of  a  tenant  or  lessee  of  one  of  the  manors 
being  the  owner  of  the  other.     See  Speer  v.  Crawter,  2  Mer.  415,  418. 

*So  where  several  lands  allotted  to  the  holders  of  certain  offices,  r:i-q---i-i 
were  for  a  long  series  of  years  in  the  possession  of  a  single  individual,  -' 

in  consequence  of  his  holding  all  the  offices,  a  confusion  of  boundaries  taking 
place  in  consequence  thereof,  seems  to  have  been  considered  to  be  a  good 


C22  CONFUSION     OF     BOUNDARIES. 


ground  for  proceedings  in  equity,  tliougli  it  was  not  necessary  to  determine 
tte  point:  Kennedy  v.  Trott,  6  Moo.  P.  C.  C.  467. 

A  court  of  equity  will  grant  relief  not  only  against  a  party  guilty  of  neglect 
or  fraud  in  causing  a  confusion  of  boundaries,  but  also  against  all  those  who 
claim  under  him,  either  as  volunteers  or  purchasers,  with  notice  :  See  Attor- 
ney-General V.  Stepliens,  6  De  G.  Mac.  &  G.  134. 

The  Court  in  cases  relating  to  confusion  of  boundaries,  proceeds  upon  the 
same  principle  as  it  does  where  an  agent  or  bailiff,  or  any  other  person  who  is 
under  an  obligation,  express  or  implied,  to  keep  his  own  property  separate 
from  the  property  of  another,  mixes  them  together,  for  xinder  such  circum- 
stances he  will  have  the  onus  thrown  upon  him  of  distinguishing  his  own  pro- 
perty ;  and  if  he  is  unable  to  do  so,  the  other  person  will  be  entitled  to  the 
whole  of  the  property.  See  Lupton  v.  White,  15  Ves.  432 ;  in  which  case 
the  defendants  were  under  the  obligation  of  keeping  distinct  accounts  of 
the  ore  produced  by  two  different  mines,  to  the  produce  of  one  of  which 
the  plaintiffs  were  entitled.  The  defendants  having  mixed  it,  were  held 
liable  to  be  charged  with  the  whole  net  produce,  except  what  they  should 
prove  to  have  been  taken  from  their  own  mine.  And  see  Panton  v.  Panton, 
cited  8  Ves.  440  ;  Chedworth  v.  Edioards,  8  Ves.  46.  [See  1  Smith's  Lead- 
ing Cases,  472,  5th  Am.  ed.] 

In  addition  to  the  grounds  of  equitable  relief,  in  order  to  sustain  a  bill  for 
a  commission  to  ascertain  boundaries,  the  plaintiff  must  show  that  some  por- 
tion of  the  lands,  the  boundaries  of  which  are  alleged  to  have  been  confused, 
is  in  the  possession  of  the  defendant,  (^Attorney- General  v.  Stephens,  6  De  G. 
Mac.  &  G.  Ill,  149,  overruling,  S.  C.  1  K.  &  J.  724  ;)  he  must  also  establish, 
by  the  admission  of  the  defendant,  or  by  evidence,  a  clear  title  to  some  land 
in  the  possession  of  the  defendant :  Godfrey  v.  Littel,  1  Russ.  k  My.  59  ;  2 
Russ.  k  My.  630.  In  the  Bishoj)  of  Ely  v.  Kenrick,  Bunb.  332,  it  is  laid  down, 
that  the  Court  will  not  entertain  jurisdiction,  except  on  the  admission  of  the 
plaintiff's  title  to  some  of  the  lands,  by  the  party  against  whom  the  relief  is 
souMit.  If,  however,  that  were  the  case,  there  could  be  no  such  remedy  as  a  com- 
mission to  ascertain  boundaries ;  for  the  defendant  would  in  every  case  take  espe- 
cial care  to  deny  the  plaintiff's  title,  and  so  deprive  him  of  his  remedy.  It 
was  held,  therefore,  both  by  Sir  J.  Leach,  M.  R.,  and  by  Lord  Brougham  in 
^0-9-,  Godfrey  v.  ''Littel,  1  Russ.  &  My.  59;  2  Russ.  &  My.  630,  that  the 
^  "  plaintiff  might  establish  his  title  by  evidence.  "  The  position,'' 
observed  Lord  Brougham,  ''  laid  down  in  Buubury  is  indeed  contradicted  by 
the  other  cases;  and  in  Wake  v.  Conyers,  Lord  Northingtou,  though  strongly 
disposed  to  dismiss  the  bill,  and  though  he  talks  of  the  frightful  consequences 
arising  from  such  commissions,  preferred  accomplishing  his  object  by  taking 
another  ground  for  the  dismissal  of  the  bill,  namely,  that  the  manorial  rights 
claimed  by  the  plaintiffs  were  incorporeal  hereditaments,  and  that  the  defen- 
dants were  entitled  to  the  soil  and  freehold  in  the  estates  in  question.  This, 
therefore,  proves  that  Lord  Xorthington  not  only  did  not  acquiesce  in  the 


"^AKE     V.     CONYERS.  623 


principle  attempted  to  be   established  in  Bunbury,  but  that  he  wholly  re- 
pudiated the  authority  of  that  case  :"  2  Euss.  &  My.  633. 

Where  the  quautity  of  the  land  of  the  plaintiff,  in  the  possession  of  the  de- 
fendant, is  doubtful  upon  the  evidence,  the  Court  will  direct  a  commission  or 
an  issue,  as  will  best  answer  the  justice  of  the  case  :  Godfrey  v.  Littel,  1 
Euss.  &  My.  59  ;  2  Euss.  &  My.  630. 

It  must  be  shown  clearly,  that,  without  the  assistance  of  the  Court,  the 
boundaries  cannot  be  found  :  Miller  v.  Warniington,  1  J.  &  W.  491. 

Another  and  a  very  old  ground  for  equity  interposing  in  cases  of  this  kind, 
which  is  mentioned  in  the  principal  case,  is  to  prevent  multiplicity  of  suits  : 
see  Bouverie  v.  Prentice,  1  Bro.  C.  C.  200 ;  Mayor  of  York  v.  Pilkington,  1 
Atk.  282,  284  ;  and  see  Whalcjj  v.  JDaicson,  2  S.  &  L.  370,  371 ;  Meadows  v. 
Patherick,  Eep.  t.  Finch.  154. 

The  doctrine  laid  down  in  the  principal  case  has  recently  been  reviewed  and 
approved  of  in  the  case  of  the  Marquis  of  Bute  v.  Tlie  Glamorganshire  Canal 
Comjoany,  1  Ph.  681,  where  a  commission  to  ascertain  boundaries  was  prayed 
for,  and  the  bill,  amongst  other  things,  alleged  that  the  defendants  had  gradu- 
ally encroached  upon  the  plaintiff's  land,  filling  up  the  ditch  or  the  greater 
part  of  it,  and  obliterating  the  boundary,  and  that  the  occupiers  were  fifty  in 
number,  and  that  it  would  be  impracticable  to  proceed  at  law.  It  was  objected, 
that  it  was  only  a  dispiite  between  two  contiguous  proprietors  as  to  their 
actual  boundaries,  and  that  the  remedy  was  at  law,  and  that  there  was  no 
ground  for  equitable  interference.  But  the  Lord  Chancellor  held  otherwise. 
"  The  rule,"  observed  his  Lordship,  "  as  I  apprehend,  is  this,  that  the  mere 
confusion  of  boundaries  between  adjacent  proprietors  will  not  support  a  bill 
for  a  commission  :  there  must  be  some  equity  arising  out  of  the  conduct  or 
acts  of  the  party  against  whom  the  commission  is  prayed,  or  the  bill  must  be 
brought  for  the  *purpose  of  preventing  a  multiplicity  of  suits.  In  the  rjito-q-i 
case  of  Wake  v.  Conyers,  (1  Eden,  331,)  referred  to  by  the  defen- 
dants, it  is  stated  by  the  Lord  Keeper,  (Northington,)  that  the  Court  will 
entertain  such  a  bill  '  where  there  might  have  been  a  multiplicity  of  suits,  or 
where  the  confusion  has  been  created  by  the  act  of  the  parties,  as  where  a 
party  has  ploughed  too  near  another,  or  the  like.'  I  think  the  allegations  in 
this  bill  present  a  case,  which,  if  substantiated  by  evidence,  would  entitle  the 
plaintiff  to  a  commission ;  the  bill  states  a  system  of  gradual  encroachment  on 
the  part  of  the  defendants,  the  filling  up  of  the  ditch,  and  obliterating  the 
boundaries;  and  further,  the  necessity,  if  this  court  should  not  interfere,  of 
bringing  a  great  number  of  actions  against  different  parties,  in  order  to  fix  the 
boundaries  and  establish  the  plaintiff's  right." 

It  seems  that  a  court  of  equity  in  England  has  jurisdiction  to  issue  a  com- 
mission to  ascertain  boundaries  in  our  colonies  :  see  Tidlocli  v.  Hartley,  1  Y.  & 
C.  C.  C.  114 ;  where  the  Yice-Chancellor  Knight  Bruce  entertained  a  bill  to 
settle  the  boundaries  of  real  estates  in  Jamaica.  Penn  v.  Lord  Baltimore,  1 
Ves.  444;  Pike  v.  Hoare,  2  Eden.  182,  and  Bayley  v.  Edwards,  2  Swanst. 


624 


cox  FUSION     OF     BOUNDARIES. 


703,  were  cited,  but  liis  Honor  gave  judgment,  without  mentioning  any  doubt 
as  to  tbe  jurisdiction. 

A  somewhat  simih\r  class  of  cases  may  be  here  mentioned,  in  which  the 
owner  of  a  rent  will  be  entitled  to  relief  in  equity,  "  on  the  usage  of  payment," 
where,  in  consequence  of  the  confusion  of  boundaries  or  otherwise,  the  parti- 
cular lands  on  which  the  rent  is  a  charge  cannot  be  fixed  on,  as  a  fund  for 
the  legal  remedy  by  distress.  See  Dul-e  of  Leeds  v.  Poxcell,  1  Ves.  171,  172  ; 
A^rth  V.  Earl  and  Countess  of  Strafford,  3  P.  Wms.  148  ;  Bouverie  v. 
Prentice,  1  Bro.  C  C.  200;  DuJce  of  Leeds  v.  Corporation  of  New  Radnor, 
2  Bro.  C.  C.  518,  and  cases  there  cited,  overruling  S.  C,  2  Bro.  C.  C.  338. 
And  see  the  cases  cited  by  Sir  R.  T.  Kindersley,  V.  C,  in  Mayor  of  Basing- 
stoke V.  Lord  Bolton,  1  Drew.  289.  But  the  Court  will  not  grant  a  commis- 
sion unless  the  plaintiff  can  fix  upon  some  house  or  parcel  of  land  and  say 
that  it  was  part  of  the  land  sought  to  be  charged,  (^Mayor  of  BasingstoJce  v. 
Lord  Bolton,  3  Drew.  50,  63,)  and  the  Court  will  not  interfere  in  the  case  of 
heriots  payable  by  custom  out  of  the  chattels  of  a  deceased  tenant  by  his  exe- 
cutor, as  against  his  heir,  in  the  absence  of  his  personal  representatives.      lb. 


Equity  will  decree  a  partition  as 
between  tenants  of  land  claiming  un- 
der the  same  title,  where  the  only 
question  in  controversy  is  as  to  the 
allotment  of  their  respective  shares; 
but,  it  has  no  general  jurisdiction  in 
questions  of  title,  and  will  not  allow 
a  bill  to  be  made  a  substitute  for  an 
action  of  ejectment;  The  Alton  Ma- 
rine and  F.  Ins.  Co.  v.  Buckmaster, 
13  Illinois,  201.  It  will  not,  there- 
fore, sustain  a  bill  to  settle  bounda- 
ries as  between  adjacent  properties, 
unless  some  special  ground  of  equity 
is  shown,  to  sustain  the  jurisdiction ; 
Haskell  \.  Allen,  23  Maine,  448 ;  Bag- 
(jett  V.  Hart,  5  Florida,  215,  332. 
And  this  cannot  be  found  in  the  foct 
that  the  plaintiff  has  a  mere  equitable 


title,  and  that  the  legal  title  is  out- 
standing in  the  hands  of  a  trustee,  or 
of  third  persons;  Stuart's  Heirs  v. 
Coidter,  4  Randolph,  74 ;  Daggett  v. 
Hart. 

Where  the  owner  of  land  brokedown 
a  dam,  and  ploughed  up  the  race-way 
which  led  from  it,  so  as  to  render  it 
difficult  for  the  complainant,  who  was 
entitled  to  use  both  the  dam  and  the 
race,  to  ascertain  or  define  their  course 
and  situation ;  the  case  was  held  to 
fall  within  the  principles  which  en- 
title equity  to  remedy  a  confusion  of 
boundaries,  produced  by  the  miscon- 
duct of  the  defendant,  and  relief  was 
accordingly  given  to  the  complainant ; 
Merriman  v.  Russell,  2  Jones,  Equity, 
470. 


AGAR     V.     FAIRFAX.  625 


PARTITION. 

*AGAR  V.  FAIRFAX.  [*374] 

AGAR  V.  HOLDSWORTH. 

ROLLS,  NOV.  29,  30,  1808.     ON  APPEAL,  NOV.  13,  1809;  MAY  28,  30,  DEC.  11, 
1810;  MARCH  15,   1811. 

REPORTED    17    VES.    633. 

Partition.] — Decree  fur  partition  among  several  joint  proprietors  ;  and  no 
objection  from  a  covenant  not  to  inclose  without  general  consent,  rights  of 
common,  and  the  inequality  and  uncertainty  of  the  shares  171  proportion  to 
other  estates. 

The  decree  directed  a  reference  to  the  Master,  to  inquire  whether  the  plaintiff 
and  defendants,  or  any  or  which,  are  entitled  ;  and  in  what  shares,  accord- 
ing to  the  respective  values  of  the  other  estates ;  and  then  a  commission  to 
divide  accordingly  ;  the  costs  of  the  partition  to  be  borne  by  the  parties  in 
proportion  to  the  value  of  their  resj^ective  interests  ;  and  no  previous  or  sub- 
sequent costs  J  by  analogy  to  the  proceeding  at  law. 

The  bill  stated,  that  Lord  Fairfax  and  other  persons  were  in  1716,  seised 
in  fee  of  the  manor  of  Bilbrough,  in  the  county  of  the  city  of  York,  and  of 
the  greatest  part  of  the  lands  in  the  said  manor,  and  also  of  the  whole  of  the 
piece  of  land  in  the  said  manor  called  Bilbrough  Moor,  then  uninclosed  ;  and 
by  indentures  of  bargain  and  sale  and  release,  dated  the  14th  July,  1716,  Lord 
Fairfax  and  the  other  persons  so  seised,  sold,  and  conveyed  all  the  said  manor, 
lands,  and  Bilbrough  Moor,  and  other  estates  in  the  county  of  the  city  of 
York,  to  the  use  of  Robert  Fairfax  and  John  Hardwicke  and  their  heirs. 

By  indentures  of  lease  and  release,  dated  the  7th  and  8th  of  September^ 
1716,  reciting,  that  part  of  the  *purchase-money  paid  for  the  pre-  r^jco-r-. 
raises,  conveyed  hy  the  former  deeds,  was  advanced  to  Robert  Fairfax 
by  Thomas  March,  under  an  agreement  whereby  he  was  to  become  the  sole 
purchaser  of  the  lands  and  hereditaments  therein  mentioned,  Fairfax  and 
Hardwicke  conveyed  to  Thomas  March  and  Arthur  March  the  several  lands, 
particularly  described,  situate  in  Bilbrough,  and  also  all  the  said  Thomas 
March's  part  and  share  of  and  in  the  moor  or  common  called  Bilbrough  Moor, 
and  of  and  in  the  soil,  freehold,  and  inheritance  of  the  same ;  which  part  or 
share  it  was  thereby  declared,  Thomas  March  had  purchased  of  Robert  Fair- 
fax, together  with  the  farms  and  lands  thereby  granted  and  released;  and  that 
the  said  moor  was  to  be  estimated  and  allotted  between  the  said  Robert  Fair- 
fax and  the  said  Thomas  March,  and  the  other  purchasers  under  Robert 
Fairfax  and  John  Hardwicke;  viz.,  Charles  Redman,  Bernard  Banks,  Mat- 
thew Smith,  and  Nathaniel  Hird,  in  proportion  to  the  several  farms  and  lands 

VOL.  II. — iO 


626  PARTITION. 


in  Bilbrough  aforesaid,  by  them  respectively  purcliased,  and  the  valuations  of 
the  same,  -whenever  the  said  moor  or  common  called  Bilbrough  Moor  should 
happen  to  be  inclosed  in  time  to  come ;  but  reserving  to  Fairfax  and  Hard- 
wicke,  their  heirs  and  assigns,  all  the  back  lanes  and  the  high  street,  and  a 
small  waste  thereupon,  in  Bilbrough  aforesaid,  with  liberty  to  them  to  inclose 
the  same,  subject,  nevertheless,  (both  before  and  after  such  inclosure,)  to  such 
■^ys,  &c.,  in  and  through  the  same,  to  be  made  by  the  said  Thomas  March, 
his  heirs  and  assigns,  as  had  been  anciently  and  customarily  used  and  enjoyed 
by  the  tenants,  owners,  or  occupiers  of  the  farms,  lands,  and  premises  thereby 
released  to  March  and  his  heirs ;  to  hold  to  Thomas  and  Arthur  March,  their 
heirs  and  assigns  for  ever. 

The  bill  further  stated,  that  Kedman,  Banks,  Smith,  and  Hird  respectively, 
purchased  under  Fairfax  and  Hardwicke  divers  farms  and  lands  in  Bilbrough, 
and  also  several  parts  or  shares  of  Bilbrough  Moor,  and  of  and  in  the  soil, 
freehold,  and  inheritance  thereof,  in  proportion  to  the  several  farms  and  lauds 
r*.n'-'f-\  in  Bilbrough  aforesaid  by  *them  respectively  purchased,  and  what 
•-  -^  should  be  the  value  thereof  respectively,  when  the  said  piece  of  land 
called  Bilbrough  Moor  should  be  divided  or  inclosed,  in  the  same  manner  as 
the  share  of  Thomas  March  in  the  said  moor  was  to  be  estimated  and  allotted ; 
and  the  said  messuages,  farms,  lands,  and  premises,  and  the  said  parts  or  shares 
of  Bilbrough  Moor,  were  conveyed  to  Redman,  Banks,  Smith,  and  Hird,  and 
their  respective  heirs  and  assigns,  in  fee  simple ;  and  Fairfax  and  Hardwicke 
retained  the  remaining  part  of  the  said  lands  in  Bilbrough,  and  a  part  or  share 
of  Bilbrough  Moor,  and  of  and  in  the  freehold  and  inheritance  thereof,  in 
proportion  to  the  farms  and  lands  in  Bilbrough  aforesaid  retained  by  them, 
and  what  should  be  the  value  thereof  at  the  time  when  the  said  piece  of  land 
called  Bilbrough  Moor  should  be  divided  or  inclosed,  in  the  same  manner  as 
the  share  of  the  said  Thomas  March  in  Bilbrough  Moor  was  to  be  estimated 
and  allotted. 

Arthur  March,  who  was  a  trustee  for  Thomas  March,  died  in  his  lifetime; 
and  Robert  Fairfax  died  in  the  lifetime  of  Hardwicke ;  and  by  divers  mesne 
conveyances,  &c.,  the  whole  of  the  said  premises,  conveyed  to  Fairfax  and 
Hardwicke,  and  Bilbrough  Moor  became  vested  in  the  plaintiff,  and  such  of 
the  defendants  to  the  original  bill,  as  therein  named,  in  the  manner,  shares, 
and  proportions  therein  stated ;  and  they,  and  no  other  person,  were  seised  in 
fee  of  the  whole  of  Bilbrough  Moor,  and  the  freehold  and  inheritance  thereof, 
as  tenants  in  common,  which  had  been  used  and  enjoyed  by  them,  and  those 
under  whom  they  derive  title,  as  common  pasture  for  horses,  &c. 

The  bill  prayed  an  account  of  the  lands  in  Bilbrough,  conveyed  to  Thomas 
and  Arthur  March,  and  those  purchased  by  Redman  and  the  other  persons 
from  Fairfax  and  Hardwicke,  and  of  the  lands  retained  by  them  ;  that  the 
value  of  the  said  lands  may  be  ascertained ;  and  that  a  commission  may  be 
directed  to  issue,  to  ascertain  the  value  of  the  said  several  lands,  and  the  parts  or 

„ I  shares  of  the  plaintiff  and  the  other  persons  named  in  Bilbrough  '''Moor ; 

^  and  also  to  allot  in  severalty,  make  partition  of,  and  divide  Bilbrough 


AGAR     V.     FAIRFAX.  627 

iiloor  into  sis  several  parts  or  sliares,  iu  proportion  to  the  amount  of  the  true 
and  just  value  of  the  several  farms  and  lands  in  Bilbrough,  so  convej-ed  and 
purchased  or  retained ;  and  that  all  the  said  shares  of  Bilbrough  Moor,  when 
so  allotted,  may  be  inclosed,  and  held  in  severalty  by  the  plaintiff  and  the  other 
persons  entitled,  &c. 

The  answers  stated,  that  in  each  of  the  derivative  conveyances  to  the  joint 
or  sub-purchasers  under  Fairfax,  are  contained  covenants  against  inclosures 
of  the  moor  without  consent :  viz.,  covenants  by  Robert  Fairfax  and  John 
Hardwicke  respectively,  with  each  of  the  sub-purchasers,  that  neither  he  nor 
his  heirs  and  assigns  should  or  would  inclose,  or  cause  to  be  inclosed,  any  part 
of  the  said  moor,  other  than  the  back  lanes  and  small  waste,  as  therein  men- 
tioned, without  the  consent  of  the  said  Thomas  March,  &c.,  his  heirs  or  as- 
signs; and  Thomas  March  and  the  other  sub-purchasers  entered  into  similar 
covenants  with  Fairfax  and  Hardwicke  not  to  inclose  without  the  consent  of 
them  and  their  heirs.  The  answers  also  stated  the  persons  in  whom  the 
estates,  so  conveyed  to  Fairfax  and  Hardwicke,  were  vested ;  and  that  those 
persons  and  their  tenants,  not  exclusively,  but  together  with  others,  had  en- 
joyed and  exercised  tlie  herbage  and  other  rights  and  privileges  in  and  upon 
Bilbrough  Moor ;  and  that  the  several  rights,  shares,  and  interests,  of  the  per- 
sons entitled  were  uncertain,  and  in  nowise  ascertained;  and  the  defendants 
submitted,  that  such  partition  as  was  sought  by  the  bill  ought  not  now  to  take 
place;  particularly  as  such  rights  and  interests,  and  the  other  rights  and  inte- 
rests in  and  to  the  said  moor,  were  uncertain  and  indeterminate,  and  the  par- 
ties concerned  were  not  agreed,  and  had  not  consented  to  having  an  inclosure 
or  partition  thereof;  and  submitted  that  the  case  now  before  the  Court  was 
not  proper  for  a  partition  and  inclosure  by  a  court  of  equity,  but  by  Act  of 
Parliament  only,  where  facilities  and  benefits  might  be  secured  and  objections 
and  inconveniences  obviated;  the  former  of  which  could  not  *be  ex-  |.^.-,_^^ 
tended,  and  the  latter  removed,  if  the  present  attempt  to  obtain  a  par- 
tition and  inclosure  in  this  Court  should  succeed. 

Mr.  Richards  and  Mr.  Bell,  for  the  plaintiff. 

Sir  Samuel  Romilly  and  Mr.  Hall,  for  the  defendants. — A  bill  for  a  parti- 
tion under  these  circumstances  is  without  precedent.  Partition  is  of  common 
right  between  parceners,  joint  tenants,  and  tenants  in  common;  but  it  could 
not  be  compelled  either  at  law  or  in  equity,  except  amongst  parceners,  before 
the  statute  of  Henry  VIII. ,^  whicli  gave  it  to  joint  tenants  and  tenants  in 
common  of  estates  of  inheritance ;  and  in  the  following  year  it  was  extended 
to  particular  estates.  It  cannot  be  applied  to  interests  of  any  description  be- 
yond those  defined  limits,  comprising  persons  with  characters  ascertained,  and 
rights  perfectly  clear.  These  persons  are  represented  as  quasi  tenants  in  com- 
mon. A  tenancy  in  common  may  be  of  unequal,  but  not  of  unascertained 
shares.  In  the  declaration  between  parceners  or  joint  tenants,  the  demandant 
must  state  the  title,  and  the  distinct  shares  must  appear  between  tenants  in 

1  Stat.  31  Hcu.  8,  c.  1,  s,  2  ;  stat.  32  Hen.  8,  c.  32,  s.  1. 


628  PARTITION. 


common;  the  declaration  must  state  the  title  and  share  of  the  plaintiff,  and 
the  shares,  though  not  the  distinct  titles  of  the  defendants.  The  statute  of 
William  III./  for  advancing  this  remedy,  adding  particular  ceremonies,  de- 
clares, that,  in  default  of  appearance,  the  Court  may  proceed  to  examine  the 
demandant's  title,  and  the  quantity  of  his  purpart;  and  shall  for  so  much  give 
judgment  by  default,  and  award  writ  to  make  partition,  whereby  such  purpart 
may  be  set  out  in  severalty.  The  partition  can  only  proceed  upon  the  title  so 
ascertained  on  the  face  of  the  instrument,  not  by  inquiries. 

It  cannot  be  maintained  that  common  rights  form  no  objection.  The  lord 
could  not,  except  under  the  statute  of  Merton,^  have  inclosed,  or  taken  any 
part  of  the  waste;  and  that  statute  gives  the  right  of  approving,  with  the 
qualification,  that  it  shall  not  be  to  the  prejudice  of  the  commoners,  for  whom 

requires  sufficient  to  be  left.     Even  for  the  purpose  of  inelosure,  partition 
-.  cannot  be  *made  in  prejudice  of  that  right,  and  much  less  for  any 
^  other  purpose.     The  statute  of  Edward  VI.'  accordingly  declares  the 

right  of  the  commoner  to  pull  down  an  inelosure  by  the  lord  infringing  that 
rio-ht,  and  gives  the  remedy  by  assize,  with  treble  damages.  Formerly  a 
greater  degree  of  strictness  prevailed  upon  partition  here  than  in  courts  of 
law ;  and  that  appears  to  be  Lord  Hardwicke's  opinion,  in  Carticright  v.  Pul- 
teney}  In  Lancashire,  there  are  many  instances  of  rights  enjoyed  by  several 
persons,  capable  of  being  ascertained,  but  still  uncertain,  of  which,  therefore, 
they  cannot  be  considered  tenants  in  common ;  and,  if  ascertained,  they  could 
not  remain  two  days  without  variation,  fluctuating  continually,  according  tc 
the  management,  husbandry,  and  cultivation  of  the  difierent  proprietors. 

This  property,  therefore,  enjoyed  in  common,  but  by  unascertained,  indefi- 
nite shares,  is  incapable  of  partition.  It  is  impossible  to  frame  a  declaration, 
as  the  ascertained  part  cannot  be  proved,  and  no  inquiry  can  be  directed  for 
that  purpose.  Farther  difficulties  arise,  from  the  nature  of  the  property,  with 
reference  to  rights  long  exercised  and  enjoyed  upon  it,  independent  of  the 
title  of  these  proprietors;  being  stocked,  the  herbage  taken,  &c.,  as  it  is  said, 
by  persons  having  no  right;  but  it  might  be  common  appendant,  or  because 
of  vicinage:  or  common  appurtenant,  or  in  gross;  bj  grant  or  prescription. 
A.  very  formidable  impediment  is,  the  covenant  against  inclosing  without 
mutual  consent,  which  can  be  the  only  object  of  partition. 

The  form  of  the  decree,  in  these  cases,  is  not  general.  In  Curzon  v.  Lyster,^ 
which  was  much  considered,  the  direction  was,  that  the  persons  named,  any 
three  or  two  of  them,  should  go  to,  enter  upon,  walk  over,  and  survey  the 
land,  and  make  a  fair  partition,  division,  and  allotment  thereof  in  moieties  : 
one  to  the  plaintiff,  the  other  to  the  defendant;  and  the  parts  so  allotted  to 
divide  by  metes  and  bounds,  and  to  examine  witnesses  upon  such  interroga- 
tories, as  they  shall  see  occasion,  etc.     In  some  instances,  close  commissions 

1  Stat.  8  &  0  Will.  3,  c.  31,  made  perpetual  by  3  &  4  Ann.  c.  18. 

»  Stat.  20  lien.  3.  3  4  &  5  Edw.  6. 

*  2  Atk.  380.  ^  Cited  from  a  MS.  note. 


AGAR     V.     FAIRFAX.  629 


were  granted,  the  commissioners  ^administering  an  oath  of  secrecy  to 
the  several  persons  before  them.  The  commission,  in  C'«/-;.'o?i  v.  X^s^er,  L  '^  J 
originally  was  so.  But  according  to  Lord  Redesdale's  clear  opinion,  that  is 
erroneous;  the  commission  is,  in  all  respects,  analogous  to  the  writ  of  partition. 
The  commissioners  are  to  do  what  the  sheriff  and  jury  would  have  done,  and 
have  no  power  to  make  any  inquiry,  except  as  to  the  very  lands  to  be  divided. 
The  commission  being  in  particular,  ascertained  forms,  a  new  one  cannot  be 
be  directed,  and  certainly  not  such  as  is  now  required,  with  power  to  compel 
a  production  of  title  deeds,  to  examine  witnesses,  and  then  to  go  upon  each 
separate  estate,  ascertain  the  value,  and  divide  accordingly,  asking,  in  the 
alternative,  either  a  commission  or  a  reference  to  the  Master,  for  the  purpose 
of  all  these  inquiries.  The  result  will  be  several  distinct  cases,  producing  all 
the  inconvenience  which  the  covenant  against  inclosure  without  mutual  con- 
sent was  intended  to  prevent. 

Mr.  litchards,  in  reply. — All  persons  supposed  to  have  rights  of  common 
were  made  defendants,  and  all  disclaimed  except  two,  who  are  parties  claim 
ing  right  of  common,  without  stint,  annexed  to  houses,  directly  contrary  to 
law.  If  there  are  any  common  rights  subsisting,  they  cannot  be  affected  by 
partition.  Admitting  that  the  shares  are  not  ascertained,  that  may  and  will 
be  done  by  the  commissioners,  who  will  ascertain  the  shares  in  which  all  these 
joint  proprietors  of  the  laud  are  interested  ;  and  for  that  purpose  some  previous 
inquiry  may  be  necessary.  In  Calmady  v.  Calmady^  much  previous  investi- 
gation was  required  to  ascertain  the  shares  and  to  make  the  proper  distinction 
as  to  the  costs.  That  course  must  be  taken  in  every  case  where  the  parties 
differ  as  to  their  respective  interests,  either  by  an  inquiry  before  the  Master, 
or  some  other  means,  as  in  the  case  of  dower,  which  is  as  much  a  right  at  law 
as  partition,  and  depends,  in  this  Court,  on  much  the  same  principle.  The 
Court  will  find  its  way  to  the  ultimate  purpose;  in  the  one  case,  the  widow's 
right  of  dower;  in  the  *other,  a  partition  among  persons  having  an  un- 
divided interest,  either  as  joint  tenants,  coparceners,  or  tenants  in  L  '^'^-'■J 
common. 

This  is  clearly  a  tenancy  in  common :  the  trustees  of  Lord  Fairfax,  seised 
in  fee  of  the  whole,  conveying  distinct  farms  and  shares  of  this  moor  to  the 
several  persons  from  whom  these  parties  claim  ;  under  these  circumstances,  a 
partition  is  matter  of  right :  Parker  v.  Gerard.'^  The  shares  are,  in  contempla- 
tion of  law,  ascertained,  if  they  are  capable  of  being  ascertained,  as  they  are, 
by  reference  to  the  prices  paid  by  the  several  parties.  In  Leigh  v.  Leujli,  a 
manor,  an  entire  thing,  was  the  subject  of  partition  ;  and  it  was  impossible  to 
know  the  value  of  a  moiety  of  a  sixth  part  without  knowing  the  value  of  the 
whole.  The  only  parties  to  the  cause  were  those  who  were  entitled  to  a  moiety 
of  a  sixth ;  the  commissioners  must,  therefore,  have  taken  into  consideration 
a  subject  of  property,  in  the  hands  of  persons  not  parties,  and  the  duty  of 

1  2  Yes.  jun.  5G8 ;  Reg.  Book,  1794,  A.  460. 

2  Amb.  236.     See  Warner  t.  Baynes,  Amb.  589;  Turner  v.  Morgan,  8  Ves.  143. 


630  PARTITION. 


the  commissioners  was  not  less  difl&cult  than  what  is  required  by  this  bill, — a 
valuation  having  regard  to  the  lands  possessed  by  parties  in  the  cause;  in  that 
case,  a  valuation  with  reference  to  shares  of  a  manor  not  belonging  to  any 
party  iu  the  cause.  This  plaintiff  prays  the  Court  to  declare  the  rights  accord- 
ino-  to  this  deed,  and  that  the  commissioners  shall  divide  according  to  the 
rights  so  declared.  That  object  must  be  obtained,  if  not  through  commis- 
sioners, by  a  reference  to  the  Master,  under  all  the  circumstances;  these  par- 
ties beino-  clearly  tenants  in  common,  entitled  iu  shares  to  be  ascertained  by 
comparison  of  the  different  farms  and  respective  interests  in  the  moor.  The 
commissioners  are  to  exercise  their  judgment  according  to  the  original  price, 
or  rather  the  present  value,  which  is  the  true  construction  ;  and  for  owelty  of 
partition  they  may,  in  their  discretion,  give  more  to  one  than  another. 

The  covenant  not  to  inclose  is  merely  a  private  engagement,  and  cannot  be 

considered  as  binding  the  parties  not  to  apply  to  the  law  of  the  country,  as  a 

covenant  to  refer  to  arbitration  will  not  prevent  the  party's  ^assertion 

'^'^  ^-'  of  his  right  in  a  court  of  justice.  This  is  a  covenant  inconsistent  with 
the  estate,  applicable  only  to  certain  cases,  and  cannot  prevent  partition  for 
ever.  Partition  is  not  within  the  terms  of  a  covenant  not  to  inclose,  and 
there  may  be  great  advantage  from  partition  without  inclosure.  The  commis- 
sion in  Curzon  v.  Li/ster  was  settled  by  the  Master,  the  forms  being  very 
different. 

Sir  W.  Grant,  M.  R. — I  shall  take  a  little  time  to  consider  what  will  be 
the  proper  decree  in  this  case.  At  present,  I  am  strongly  inclined  not  to  de- 
cree an  immediate  partition,  upon  the  grounds  that  have  been  stated;  but  T 
wish  to  consider,  whether,  as  incidental  to  the  demand  of  partition,  the  Court 
would  not  put  into  a  train  of  inquiry,  what  are  the  proportions  in  which  they 
are  interested  in  these  lands,  in  order  to  lay  a  foundation  for  partition  after- 
wards ;  that  previous  inquiry  to  be  before  the  Master,  whether  the  commission 
ousht  not,  as  the  writ  always  does,  to  state  the  proportions  in  which  the  par- 
tition is  to  be  made. 

^SiR  W.  Grant,  M.  R. — There  are  two  cases  in  which  the  Court  referred 
it  to  the  Master  to  ascertain  the  interests  of  the  parties,  and  afterwards  directed 
a  commission  to  issue;  Calmady  v.  Calmady^  and  Duncan  v.  Howell.  The 
uncertainty  of  the  shares  is  not  a  ground  for  definitively  refusing  a  partition  : 
it  is  for  refusing  it  at  present.  It  cannot  be  referred  to  the  commissioners  to 
ascertain  the  interests :  that  must  be  done,  as  in  those  cases,  by  the  Court, 
through  the  medium  of  the  Master.  In  one  of  the  cases,  the  form  of  the 
inquiry  Avas,  what  undivided  shares  the  several  parties  were  entitled  to,  and 
for  what  estates  and  interests  jtherein  respectively. 

The  way  in  which  it  strikes  me,  is  this.  The  parties  have  among  them  the 
whole  interest  in  the  soil  and  freehold,  which  they  possess  in  common.     Some 

1  Dec.  18th,  1808.  ^  2  Ves.  Juq.  5G8. 


AGAR     V.     FAIRFAX.  031 

of  them  seek  a  partition.  It  is  said  there  cannot  be  a  partition,  on  account  of 
the  uncertainty  of  their  interests;  the  proportion  *to  which  each  is 
entitled  not  being  ascertained,  that  depending  upon  the  quantity  of  L  J 
interest  each  has  in  the  estate  of  another,  and  the  value  of  that  estate,  with 
reference  to  which  value,  the  allotments  of  this  moor  are  to  be  made  among 
the  parties,  the  owners  of  that  estate,  and  of  this  moor  also.  That  is  no  ob- 
jection, as  they  are  not  the  less  tenants  in  common ;  though  an  operation  must 
be  performed  before  it  can  be  ascertained  to  what  undivided  shares  they  were 
entitled  as  tenants  in  common.  It  must  be  seen  what  is  the  value  of  their 
shares  in  the  other  estate,  by  reference  to  which  this  allotment  is  to  be  made; 
and  then  they  will  be  in  the  situation  of  parties  having  ascertained  interests  in 
this  moor ;  but  still  they  are  tenants  in  common,  and  therefore  have  a  ri2;ht  to 
a  partition. 

It  seems  to  me  to  have  been  soundly  objected,  that  it  is  impossible  in  the 
present  situation  to  issue  a  commission,  as  then  it  must  be  referred  to  the 
commissioners ;  first,  to  ascertain  their  interests,  and  the  proportions  in  which 
they  are  entitled,  and  then  to  make  the  allotment.  The  former  was  never 
done  by  commissioners.  The  Court  is  to  ascertain  the  proportions  and  rights 
of  the  parties,  and  when  that  is  done,  then  the  duty  of  the  commissioners  be- 
gins, to  make  the  division  in  those  ascertained  proportions. 

An  objection  was  then  taken  to  the  rights  of  common  over  this  moor.  The 
rights  of  common  are  no  objection  to  the  commission,  as  that  right  will  not  be 
in  the  least  affected  by  the  partition,  which  regards  only  the  freehold  and 
inheritance  of  the  soil.  A  partition  never  affects  the  interests  of  third  par- 
ties. It  is  immaterial  whether  others  have  a  right  over  that  soil  and  freehold, 
which  they  have  in  common  among  them.     Those  rights  will  equally  remain. 

It  is  then  said,  there  is  a  covenant  not  to  inclose,  except  by  consent  of  all 
the  parties.  I  do  not  exactly  understand  what  is  the  meaning  of  that  cove- 
nant. If  it  is  only,  as  it  is  expressed  to  be,  against  inclosure,  what  has  that 
to  do  with  partition  ?  Partition  does  not  require  inclosure,  but  *onlv 
that  an  allotment  shall  be  made  by  metes  and  bounds.  Whether  they  L  °^J 
may  have  a  right  to  inclose  afterwards  may  depend  upon  other  circumstances. 
It  may  depend  upon  the  rights  of  third  persons  over  this  land,  and  upon  the 
agreement  of  the  parties  themselves.  The  covenant  against  inclosure  may 
Lave  its  effect,  and  I  am  not  now  called  upon  to  say,  whether  it  shall  or  not. 

It  is  then  said,  the  rule  by  which  the  allotment  is  to  be  made,  may  be  very 
unequal.  It  may  be  so,  but  it  is  a  rule  they  have  laid  down  for  themselves. 
The  inconvenience  is  of  their  own  making,  by  the  terms  of  their  own  agree- 
ment. If  they  were  all  agreed  now,  that  there  should  be  a  partition,  or  that 
there  should  be  an  inclosure,  this  inconvenience  as  to  the  mode  of  making  the 
valuation  would  still  present  itself. 

There  does  not  appear  to  me,  therefore,  in  this  case,  anything  to  prevent  a 
partition,  after  it  shall  have  been  ascertained  what  are  the  proportions  in  which 
the  land  is  to  be  divided  among  the  parties. 

The  decree  declared,  that  the  piece  of  land  called  Bilbrough  Moor,  is  to  be 


632  PARTITION. 


allotted  according  to  the  present  value  of  the  several  farms  and  lands  in  Bil- 
brough,  purchased  by  Thomas  March,  &c.,  and  conveyed  to  them  by  the  seve- 
ral indentures  of  the  7th  and  8th  and  12th  and  13th  of  September,  171G,  and 
of  the  farms,  &c.,  retained  by  Fairfax  and  Hardwicke,  and  directed  a  reference 
to  the  Master,  to  inquire  and  state  to  the  Court  what  undivided  shares  the 
plaintiif,  and  such  of  the  defendants  as  had  any  estate  of  freehold  or  inheritance 
in  the  said  moor,  under  the  deeds  of  1716,  were  entitled  to  or  interested  in  the 
said  moor,  and  for  what  estates  and  interests  therein  respectively,  &c.  j  and  it 
was  ordered  that  a  partition  should  be  made  of  Bilbrough  Moor  among  the 
plaintiff  and  the  said  defendants,  who  by  the  report  should  appear  to  be  en- 
titled to  any  shares  of  freehold  and  inheritance  of  Bilbrough  Moor,  under  the 
said  deeds  of  1716,  according  to  such  undivided  shares  thereof;  and  it  was 
*ordered,  that  a  commission  should  issue  for  that  purpose,  all  deeds  in 
L  ^"•'J  ti^g  power  of  the  parties  to  be  produced  before  the  commissioners,  with 
liberty  to  examine  witnesses,  &c. ;  and  it  was  ordered,  that  what  should  be 
allotted  to  the  several  parties,  should  be  held  and  enjoyed  by  them  in  severalty 
and,  if  any  of  the  parties  were  under  any  disability,  they,  when  capable,  and 
all  other  proper  parties,  should  join  in  executing  proper  conveyances,  &c.,  for 
conveying  and  vesting  the  several  shares  in  and  to  the  said  parties  respectively, 
according  to  their  several  rights  and  interests  of,  in,  and  to  their  several  undi- 
vided parts  and  shares  of  and  in  the  said  moor,  the  costs  of  the  commission 
and  inquiry,  and  of  the  defendant  Parkin  (the  heir  of  Hardwicke,)  whose 
costs  were  ordered  to  be  paid  by  the  plaintiff  in  the  first  instance,  to  be  borne 
by  the  parties  interested  in  the  moor,  in  proportion  to  what  should  be  their 
respective  shares  and  interests  in  it,  with  liberty  to  apply. 

From  this  decree  a  petition  of  appeal  was  presented,  submitting,  that,  having 
regard  to  the  nature  and  uncertainty  of  the  rights  of  the  parties,  as  well  as  of 
the  value,  and  the  particular  circumstances  of  this  case,  it  is  not  a  case  of  par- 
tition, inclosure,  or  any  relief  to  be  administered  in  a  court  of  equity. 

Mr.  Richards  and  Mr.  Bell,  for  the  plaintiff. — Since  the  case  of  Warner  v. 
Bai/nes,^  the  difficulty  of  making  partition  has  formed  no  objection  in  this 
Court.  This  case  presents  no  farther  difficulty  than  that  this  property  is  to  be 
divided,  not  in  any  certain  specific  proportions,  thirds,  fourths,  &c.,  but  accord- 
ing to  the  value  of  certain  other  estates.  There  may  be  some  difficulty  as  to 
the  proportions,  until  the  valuation  of  those  estates  shall  be  made  ;  but  from 
that  moment  the  proportions  arc  accurately  defined  :  and  on  that  ground  there 

1  Arab.  589.  See  Turner  v.  Morgan,  8  Ves.  143.  In  that  case  the  commission  having 
been  executed,  an  exception  was  taken  by  the  defendant,  on  the  ground  that  the  com- 
missioners allotted  to  the  plaintiff  the  whole  stack  of  chimneys,  all  the  fire-places,  the 
only  staircase,  and  all  the  conveniences  in  the  yard.  The  Lord  Chancellor  overruled 
the  exception,  saying,  he  did  not  know  how  to  make  a  better  partition  for  them  ;  that  ho 
granted  the  commission  witli  great  reluctance,  but  was  bound  by  authority;  and  it  must 
bo  a  strong  case  to  induce  the  court  to  interijosc,  as  the  parties  ought  to  agree  to  buy 
and  sell. 


AGAR     V.     FAIRFAX.  633 

is  no  more  objection  than  to  a  devise  of  the  residue  of  real  estate  among  chil- 
dren, to  make  their  fortunes  equal,  by  reference  to  advances  formerly  made  to 
them.  This  Court  would  proceed  in  many  cases  of  complicated  circumstances, 
from  the  intricacy  of  *thc  title,  and  the  nature  of  the  shares;  though  p^qo^-i 
a  court  of  law  could  not.  Tenants  in  common  having  a  right  to  par-  ^  -^ 
tition  at  law,  there  must  be  some  mode  of  having  a  calculation  if  necessary, 
before  their  precise  rights  as  tenants  in  common  can  be  ascertained.  What- 
ever is  capable  of  division  may  be  the  subject  of  partition  :  manors  for  instance ; 
with  every  right  of  the  lord;  and  even  the  waste  grounds  are  divided  :  Spar- 
row V.  Friend,  (the  case  of  the  manor  of  Brighton  •,y  Lane  v.  Cox,  (the  manor 
of  RoUeston  in  the  county  of  Derby.)  In  Parker  v.  Gerard  it  was  resisted. 
The  property,  situated  in  the  North  of  England,  consisted  of  cattle-gates,  and 
of  certain  other  rights,  of  a  very  peculiar  nature  ;  and  partition  was  decreed 
in  very  minute  fractions,  according  to  the  rights  in  the  cattle-gates. 

If  there  were  other  rights  existing  over  this  moor,  that  would  not  be  an  ob- 
stacle to  partition  among  those  persons  having,  by  conveyance  to  the  trustees, 
rights  in  the  soil  or  freehold.  It  is  not,  however,  made  out,  and  cannot  be 
presumed,  that  there  are  rights  of  common,  as  stated  by  the  bill ;  they  cannot 
be  supported  at  law.  There  is  no  proof,  as  suggested,  that  they  were  in  the 
habit  of  taking  greensward  or  sods,  earth  and  soil,  from  the  waste  of  the  manor; 
and  no  such  right  of  common  exists  at  law.  As  to  furze  and  whins,  &c., 
none  of  these  are  stated  as  rights  of  common  ;  they  merely  say,  they  have  been 
in  the  habit  of  taking  them.  A  covenant  not  to  divide  is  not  legal.  There 
is  no  defect  of  parties ;  and  the  decree  is  right  in  form,  following  the  precedent 
of  Duncan  v.  Howell,  referring  it  to  the  Master  to  inquire  what  undivided 
shares  the  several  parties  were  entitled  to  in  the  estate  in  question,  and  of 
■what  estates ;  and  directing  partition  to  be  made  among  the  parties  who,  by 
the  report,  shall  appear  entitled  to  any  share  «f  the  estate,  according  to  the 
shares;  and  that  a  commission  should  issue  for  that  purpose,  with  the  usual 
directions. 

Sir  Sarmiel  Romilly  and  Mr.  Hall,  for  the  defendants. — There  is  no  instance 
of  such  a  bill  as  this ;  and  the  consequences  it  will  lead  to  must  be  very  im- 
portant. The  cases  *referred  to  in  the  Registrar's  book  have  no  appli-  r^oQ-r-i 
cation.  There  are  cases  of  complicated  interests,  in  which  it  was  very 
difficult  to  ascertain  in  what  proportions  the  parties  were  interested.  There 
is  no  authority  for  the  general  principle,  upon  which  it  is  attempted  to  main- 
tain the  bill.  This  is  the  case,  not  of  all  the  owners  except  one  agreeing,  but 
of  one,  against  the  consent  of  all  the  rest,  claiming  a  partition  and  conveyance, 
contrary  to  the  express  covenant,  entered  into  on  account  of  the  difficulty,  that 
there  should  be  no  partition  unless  they  should  all  agree.  If  such  a  bill  can 
be  maintained  upon  cattle-gates  and  common  rights,  why  is  application  made 
to  the  legislature  to  divide  common  rights  ?  The  difficulty,  from  the  number 
of  parties,  may  be  overcome  by  the  expedient  of  making  some  represent  the 
rest,  where  it  would  be  inconvenient  to  bring  all  before  the  Court. 

1  Cited  from  the  decree. 


634  PARTITIOX. 


All  the  authorities  state,  that  a  bill  for  partition  is  exactly  the  same  as  the 
writ  at  common  law,  with  this  single  distinction,  that,  under  the  writ,  those 
only  are  bound  who  are  entitled  to  a  subsisting  estate  of  freehold,  not  those 
entitled  in  remainder,  whom  a  court  of  equity  will  bind  as  well  as  those  who 
have  particular  estates.  On  that  ground,  Sir  T.  Clark,  in  the  case  of  Parker 
V.  Gerard,^  held,  that  this  bill  is  matter  of  right,  and  therefore  no  costs  shall 
be  given,  as  there  are  none  upon  the  writ.  Upon  those  principles,  the  Court 
has  granted  partition  where  it  must  be  ruinous  to  all  the  parties,  as  in  the  case 
of  the  house.  Turner  v.  Morgan.^  Upon  the  same  principle,  in  Parker  v. 
Gerard,  the  interest  of  one  party  being  so  inconsiderable  that  he  would  have 
preferred  giving  it  up,  he  was  compelled  to  make  partition,  and  to  pay  an  equal 
share  of  the  expense.  A  stronger  instance  cannot  be  produced,  that  the  Court 
in  these  cases  acts  ministerially,  rather  than  judicially.  In  many  instances, 
where,  from  the  complication  of  the  interests,  the  writ  would  not  lie,  this  Court 
would  decree  partition,  which  will  not  be  prevented  by  the  difficulty  of  the 
division ;  nor,  if  it  is  to  be  in  very  small  fractions,  where  they  are  clearly 
tenants  in  common,  of  ascertained  shares,  can  it  depend  on  the  *amount 
•-  -I  of  interest.  In  Parker  v.  Gerard,  the  Master  of  the  Rolls  states  the 
injustice  which  the  Court  is  frequently  compelled  to  do,  having  no  discretion 
upon  the  subject.  The  objection  of  difficulty  is  very  strong  in  the  case  of  an 
advowson. 

How  can  such  a  decree  be  executed  ?  A  considerable  time  may  elapse  be- 
tween the  report  and  the  partition,  and  the  value  at  the  latter  period,  upon 
which  the  shares  must  depend,  may  be  materially  varied.  The  consequences 
of  this  jurisdiction  may  be  easily  imagined.  Some  of  these  estates,  having 
fallen  to  femes  covert,  infants,  or  persons  in  remote  situations,  may  have  been 
suffered  to  deteriorate ;  and  that  moment  would  be  seized,  by  a  person  who 
had  improved  this,  taking  advantage  of  the  consequence  of  superior  wealth  or 
the  neglect  of  the  others,  to  claim  partition.  For  the  very  purpose  of  guarding 
against  that,  from  a  foresight  of  the  difficulty,  confusion,  and  injustice  to  which 
it  would  lead,  was  this  covenant  against  inclosure  except  by  general  consent, 
introduced.  It  is  said,  the  covenant  is  void,  as  inconsistent  with  the  nature 
of  the  estate,  and  it  would  be  so;  but  this  is  the  case,  not  of  tenants  in  com- 
mon, standing  upon  the  common  law  right,  but  of  persons  agreeing  to  hold, 
and  looking  to  partition,  in  a  mode  not  according  to  the  law,  protecting  them- 
selves against  the  improvidence  of  such  an  agreement  in  an  unlimited  way; 
and  one  of  the  parties  to  that  special  contract  desires  now  to  have  a  part  per- 
formance, striking  out  that  express  provision  for  the  consent  of  all.  A  court 
of  equity  does  not  administer  that  peculiar  and  extraordinary  relief,  a  specific 
performance  of  a  contract,  where  the  effect  will  be  injustice,  but  leaves  the 
parties  to  the  law  ;  and  this  is  a  case  most  proper  for  the  exercise  of  that  dis- 
cretion. Another  difficulty  arises  from  the  rights  of  common  of  estovers  and 
turbary,  the  bill  stating  the  manner  in  which  those  rights  have  been  always 
enjoyed. 

1  Amb.  23G.  ^  gYgg,  143. 


AGAR     V.     FAIRFAX.  635 


The  constant  course  of  these  decrees,  is  first  to  ascertain  the  shares,  and  then 
to  come  fur  a  partition ;  and  it  may  be  doubted,  whether  one  of  the  eases  re- 
ferred to  from  the  Kegister's  book,  in  which  that  course  appears  not  to  have 
*been  followed,  was  an  adverse  decree.  The  reference,  therefore,  in 
the  first  instance,  ought  to  be  to  ascertain,  not  the  interests,  but  the  value  L  ^ 
computing  the  outgoings,  &c.,  so  as  to  ascertain  the  value  at  the  time  of  division ; 
but  if  the  course  is  not  to  come  to  the  Court  again,  the  commissioners  must 
both  ascertain  the  value,  and  make  the  division  in  the  first  instance,  which 
would  be  very  inconvenient ;  and  there  is  no  instance  of  such  a  discretion  in 
commissioners;  the  Court  only  giving  them  the  rule.  This  has  not  the  cha- 
racter of  a  tenancy  in  common,  in  certain  shares  and  proportions;  and  besides 
uncertainty,  another  objection  is,  that  nothing  passed  immediately  by  this 
deed.  The  objection  of  uncertainty  here  is  much  stronger  than  in  the  case  put 
by  Walmesly  in.  CorheUs  case,^  where  the  whole  estate  went  to  each  on  dif- 
ferent days ;  but  this  consists  of  a  great  number  of  minute  shares,  constantly 
varying.  They  may  have  unequal  shares,  as  Lord  Hardwicke  observes  f  but 
they  cannot  be  uncertain.  The  statute  of  Hen.  S,^  gives  partition  between 
joint  tenants  and  tenants  in  common,  in  the  same  manner  as  it  previously  could 
have  been  had  between  parceners.  It  was  necessary,  therefore,  to  obtain 
judgment  in  the  same  way  upon  the  title  in  joint  tenancy.  And  as  tenant  in 
common,  the  defendant  was  obliged  to  state  his  title  and  share  and  the  shares 
of  the  others,  though  he  could  not  know  their  titles,  and  a  mistake  in  stating 
the  shares  was  fatal.  Upon  what  ascertained  share  could  any  of  these  pro- 
prietors have  declared  ?  They  calculate  upon  the  value,  which  cannot  remain 
the  same  for  two  days;  and  that  objection  of  uncertainty  applies  equally  to 
the  whole  and  all  the  component  parts ;  the  number  of  shares  always  varying, 
and  consequently  the  amount  of  each  share.  No  instance  can  be  produced  of 
partition  under  this  difiiculty,  arising  from  the  number  of  shares  constantly 
varying,  and  an  express  provision  that  they  should  remain  unascertained  and 
indefinite. 

Lord  Chancellor  Eldon. — The  plaintiff  in  this  cause  is  entitled  to  a 
partition ;  but  the  decree,  though  in  terms  as  near  as  possible  to  the  case  of 
Duncan  v.  Hoicell,  I  think  *is  not  in  form  the  exact  decree  authorized  rH^qooi 
under  the  circumstances  of  this  case,  by  that  precedent.  The  varia- 
tion, however,  will  be  in  form  merely,  not  in  substance.  The  ground  upon 
which  the  case  of  Calmady  v.  Galmady,  (2  Ves.  jun.  568,)  proceeded,  was, 
that  the  plaintiff  showing  title  to  a  part  of  the  estate,  was  entitled  to  have  a  par- 
tition ;  and  though  the  titles  of  the  defendants  were  not  proved,  a  reference  to 
the  Master  was  directed  for  the  purpose  of  ascertaining  them ;  and  the  report 
finding  that  the  plaintiff"  and  the  defendants  were  entitled  to  the  whole  sub- 
ject, upon  further  directions  the  decree  was  made  for  a  partition  according  to 
the  shares  so  ascertained.  I  cannot  find  any  other  instance  of  such  directions 
given  as  to  the  costs.     How  can  I  make  infants  pay  costs  ? 

1  Co.  7G.     See  78,  a.  ■  2  Ves.  81.  ^  gtat.  31  Hen.  8,  c.  1. 


636  PARTITION. 


This  Court  issues  the  commission,  not  under  the  authority  of  any  Act  of 
Parliament,^  but  on  account  of  the  extreme  difficulty  attending  the  process  of 
partition  at  law ;  where  the  plaintiff  must  prove  his  title,  as  he  declares,  and 
also  the  titles  of  the  defendants;  and  judgment  is  given  for  partition  according 
to  the  respective  titles  so  proved.  That  is  attended  with  so  much  difficulty, 
that  hy  analogy  to  the  jurisdiction  of  a  cotirt  of  equity  in  the  case  of  dower,  a 
partition  may  he  obtained  by  bill.  The  plaintiff  must,  however,  state  upon 
the  record  his  own  title  and  the  titles  of  the  defendants ;  and  with  the  view  to 
enable  the  plaintiff  to  obtain  a  judgment  for  partition,  the  Court  will  direct 
inquiries,  to  ascertain,  who  are,  together  with  him,  entitled  to  the  whole  sub- 
ject. If,  therefore,  the  state  of  the  record,  as  originally  framed,  is  not  such 
as  to  authorize  the  Court  to  say,  that  the  plaintiff  and  the  defendants  are 
respectively  entitled  in  distinct  shares,  comprehending  the  whole  subject,  the 
proper  course  is  to  direct  a  reference  to  the  Master,  to  ascertain  what  are  the 
estates  and  interests  of  the  plaintiff  and  defendants  respectively ;  and,  if  it 
appears  that  they,  or  some  of  them,  are  entitled  to  the  whole,  then  to  order  a 
partition,  according  to  the  rights  of  all,  or  such  of  them  as  appear  entitled; 
dismissing  the  bill  as  against  those  who  do  not  appear  to  have  any  right. 
r*^(m  *The  decree  in  Cahnadyw  Calmady  is  perfectly  regular;  directing 
the  inquiry  and  afterwards  a  commission  to  issue,  to  divide  the  estate 
among  the  several  parties,  who  appear  upon  the  Master's  report  entitled  to  it. 
The  omission  in  this  decree  to  reserve  further  directions,  is  a  mere  informality, 
in  not  reserving  a  mode  of  dismissing  from  the  record  those  who  may  have  no 
title.  Considerable  difficulty  arises  in  this  case,  from  the  covenant  not  to  in- 
close. 

The  order  afterwards  pronounced  by  the  Lord  Chancellor,  directed  the  de- 
cree to  be  affirmed,  with  the  alteration  after  mentioned  ',  viz.,  instead  of  the 
words,  "  after  the  direction  for  the  partition  to  be  allotted,  according  to  the 
present  value  of  the  several  farms  and  lands  in  Bilbrough,  purchased,  &c." 
inserting  the  following  words  :  "  in  shares  according  to  the  present  respective 
values  of  the  several  farms  and  lands  in  Bilbrough  respectively  purchased ;" 
and  adding  a  declaration,  that  the  plaintiff,  being  entitled  to  an  undivided 
part  of  the  said  piece  of  land,  called  Bilbrough  Moor,  has  a  right  to  call  for  a 
partition  of  the  said  piece  of  land,  as  between  him  and  the  several  persons  en- 
titled to  the  rest  of  the  said  piece  of  land  :  such  partition  to  be  made  accord- 
ing to  the  declaration  before  mentioned ;  and  directing  a  reference  to  the 
Master,  to  inquire  and  state,  whether  the  plaintiff  and  the  defendants  respect- 
ively, or  any  and  which  of  them,  are  entitled  to  the  freehold  and  inheritance 
of  Bilbrough  Moor;  and  how  and  if  it  shall  appear,  that  all  or  any  of  them 
are  so  entitled  to  the  said  moor,  then  to  ascertain  the  respective  values  of  the 
farms  and  lands  respectively  purchased  as  aforesaid  ;  and,  having  so  ascer- 
tained the  respective  values  of  the  said  farms  and  lands,  the  Master  is  to 
ascertain,  as  among  the  plaintiff  and  the  defendants,  whom  he  shall  find  to  be 
entitled  to  Bilbrough  Moor,  in  what  undivided  shares  they  are  respectively 

1  Foubl.  1  Treat.  Eq.  18. 


AGAR     V.     FAIRFAX.  637 


entitled,  according  to  the  declaration  before  mentioned ;  and  in  that  case,  a 
commission  to  issue  to  divide  the  said  moor  among  the  plaintiff  and  defend- 
ants, who,  by  the  report,  shall  *appear  entitled  to  any  shares  of  the  r^oop-i 
freehold  and  inheritance  of  Bilbrough  Moor,  under  the  deed  of  1716, 
according  to  such  undivided  shares  thereof;  with  the  usual  directions  for  the 
production  of  deeds,  &c.,  and  liberty  to  examine  witnesses;  the  shares  allotted 
to  the  several  parties  to  be  held  and  enjoyed  by  them  in  severalty;  and,  if  any 
parties  appearing  entitled  to  shares  in  Bilbrough  Moor,  are  under  any  disa- 
bility, and  not  capable  of  making  the  conveyance,  they,  when  capable,  and  all 
other  proper  parties,  to  join  in  all  proper  conveyances,  &c.,  respectively,  ac- 
cording to  their  several  rights  and  interests  of  and  in  the  several  undivided 
shares  of  the  said  moor ;  and  if  the  Master  shall  not  find  the  plaintiff  and 
defendants,  or  any  of  them,  entitled  to  the  freehold  and  inheritance  of  the 
said  moor,  to  state  that  to  the  Court,  before  any  further  proceedings ;  and  the 
consideration  of  costs  and  further  directions  was  reserved,  with  liberty  to 
apply. 

The  cause  was  heard,  (Dec.  11,  1810,)  for  further  directions,  and  upon  the 
costs. 

Mr.  Richards  and  Mr.  Bell,  for  the  plaintiff. — The  rule  laid  down  in  the 
case  of  Calmady  v.  Calmady^  is,  that  in  these  cases  the  costs  are  given  in 
proportion  to  the  interests  of  the  parties.  The  decree,  distinctly  directing 
the  costs  of  the  plaintiff  to  be  raised  out  of  the  estate,  certainly  has  no  such 
direction  as  to  the  costs  of  the  infant  defendant,  whose  costs,  however,  ought, 
upon  the  same  principle,  to  be  a  charge  upon  the  estate  of  the  infant.  The 
old  rule  that  prevailed  previously  to  that  case,  certainly  operated  as  a  great 
hardship,  where  one  part  owner  might  have  a  single  acre,  and  another  ten 
thousand. 

Sir  Samuel  Romilly  and  Mr.  Hall,  for  the  defendants. — The  Court  is  now 
called  upon  to  lay  down  a  new  rule  as  to  the  costs  in  a  suit  for  partition. 
Formerly,  in  most   cases    costs  were   not  given,  and   the   rule   never  could 

^  The  decree  in  that  cause  declared,  that,  the  cause  coming  on  for  further  directions, 
the  report  of  the  commissioners  was  confirmed,  and  it  was  ordered,  that,  when  the  de- 
fendant Hamlyn,  an  infant,  shall  attain  the  age  of  twenty-one,  the  plaintiffs  and  the 
said  defendant  shall  execute  mutual  convej^ances  to  each  other  of  the  several  parts  of 
the  estate  allotted  to  them ;  and  in  the  meantime  the  plaintiffs  and  the  defendant  to 
hold  and  enjoy  the  several  parts  of  the  estate  so  allotted,  &c. ;  and  that  the  costs  of  is- 
suing and  executing  the  said  commission  of  partition,  and  also  the  costs  of  maliing  out 
the  title  to  the  several  parts  of  the  said  estate,  be  paid  and  borne  by  the  plaintiffs  and 
the  said  defendant,  the  infant,  in  the  shares  and  proportions  in  whkh  they  are  respec- 
tively entitled  to  the  said  estate  under  the  said  commission ;  and  it  was  ordered,  that 
such  costs  of  the  plaintiffs  be  raised  by  the  plaintiffs,  the  trustees  in  the  settlement  made 
upon  the  marriage  of  the  plaintiff  Calmady,  by  sale  or  mortgage  of  the  estate  Ln  the  set- 
tlement, according  to  the  trusts  of  the  settlement. 


638  PARTITION. 


have  *been  as  represented  in  Parker  v.  Gerard,  (Amb.  23G,)  that 
'-  they  shall  be  paid  in  equal  moieties.     The  case  of  partition  has  been 

considered  as  analogous  to  that  of  dower,  in  which  there  are  no  costs.  In 
Calmady  v.  Calmadi/,  both  at  the  bar  and  by  the  Court,  the  previous  cases 
were  distinguished  into  two  classes :  where  costs  had  been  and  where  they 
had  not  been  given ;  and  the  costs  of  the  commission  were  distinguished  from 
costs  of  the  cause.  A  new  rule  upon  this  subject  should  not  be  laid  down 
without  considei'ation,  as  the  effect  may  be  mischievous  :  for  instance,  where 
there  is  an  interest  extremely  minute,  two  or  three  acres  only,  and  in  rever- 
sion, the  old  rule,  giving  no  costs,  may  have  the  salutary  effect  of  preventing 
a  suit  by  one  against  the  inclination  of  all  the  other  parties.  In  many  cases, 
the  only  way  of  providing  for  a  portion  of  the  costs  may  be  by  selling  the  in- 
terest :  perhaps  the  interest  of  an  infant  in  settlement ;  and  if  in  reversion, 
the  whole  might  be  exhausted.  The  apportionment  of  costs  ought  also  to  ex- 
tend to  the  interests  of  persons  not  in  esse.  These,  and  many  other  instances, 
show  the  wisdom  of  the  old  rule,  and  its  justice,  considering  that  a  suit  for 
partition  is  admitted  only  as  being  more  convenient  than  the  common-law 
writ.  By  the  decree  in  Calmady  v.  Calmady  justice  was  done  most  im- 
perfectly, as  no  reason  can  be  assigned  for  not  apportioning  the  costs,  previous 
to  the  hearing,  as  well  as  the  subsequent  costs.  The  effect  in  this  case  will 
be,  that  persons  brought  by  the  plaintiff  before  the  Court  are  to  pay  costs  to 
the  hearing,  because  they  have  set  up  a  claim  which  has  not  succeeded.  The 
plaintiff  in  this  suit  is  bound  to  state  who  are  jointly  interested  with  him  j  and 
there  is  no  instance  of  making  a  defendant  so  brought  before  the  Court,  pay 
the  costs  of  a  claim  set  up  by  him  though  mistaken.  He  does  not  appear 
voluntarily  before  the  Court.  This  application  is  new  in  another  respect :  the 
plaintiff  desiring  the  costs  of  those  who,  as  the  defendants  insisted,  set  up  a 
claim,  but  who  have  disclaimed.  The  defendants,  having  only  given  notice 
r*^on  *'^^^^  such  a  claim  was  set  up,  ought  not  to  pay  *those  costs.     The 

plaintiff  ought  also  to  state  how  the  costs  of  those  defendants  who  are 
not  sui  juris  are  to  be  paid  :  whether  by  a  sale  of  their  interests,  or  in  what 
other  manner. 

Lord  Chancellor  Eldon. — This  is  really  the  great  question,  how  costs 
are  to  be  paid  on  partition.  Several  cases  have  occurred  since  Calmady  v. 
Calmady  ;  and  I  wish  to  know  whether  the  practice  has  been  uniform.  It 
is,  I  apprehend,  universally  true,  that  no  costs  are  given,  up  to  the  hearing; 
of  which  I  do  not  know  an  instance.  As  to  the  costs  of  making  out  the  title 
being  borne  in  proportion  to  the  respective  interests,  that  does  not  seem  very 
just;  as  the  expense  may  be  greater  of  making  out  the  title  of  a  share  worth 
£50,  than  of  one  of  the  value  .of  £5000.  On  the  other  hand,  the  decrees  are 
short,  in  not  providing  that  the  costs  of  infants  and  married  women  shall  be 
borne  by  the  share  in  respect  of  which  they  were  incurred.  My  impression 
is,  that  all  the  subsequent  decrees  have  followed  Calmady  v.  Calmady. 


AGAR     V.     FAIRFAX.  639 


^The  Lord  Chancellor  gave  judgment  upon  tlie  question  of  costs;  de- 
claring- that,  as  the  party  came  into  equity,  instead  of  going  to  law,  for  his 
own  convenience,  the  rule  of  law  should  be  adopted,  and  therefore,  no  costs 
should  be  given  until  the  commission ;  that  the  costs  of  issuing,  executing, 
and  confirming  the  commission,  should  be  borne  by  the  parties,  in  proportion 
to  the  value  of  their  respective  interests ;  and  there  should  be  no  costs  of  the 
subsequent  proceedings. 


Although  Mr.  Ilargrave,  in  his  note  to  Co.  Litt.  1G9,  b,  has  treated  the 
jurisdiction  of  equity  to  compel  partition  between  joint  owners  of  real  estate, 
as  of  modern  origin,  and  as  trenching  upon  the  writ  of  partition,  and  wrest- 
ing from  the  courts  of  common  law  their  ancient  exclusive  jurisdiction  over 
the  subject,  he  cites  a  case  in  Tothill,  so  far  back  as  the  40  Elizabeth,  (see 
tit.  "Partition,")  which  *one  might  suppose  would  almost  give  the 
jurisdiction  the  sanction  of  antiquity.  It  i.s,  indeed,  by  no  means  L  ^^^^J 
clear  that  courts  of  common  law  exercised  exclusive  jurisdiction  over  the  sub- 
ject, as  3Ir.  Hargrave  has  assumed;  but  be  that  as  it  may,  courts  of  equity 
most  probably  assumed  concurrent  jurisdiction,  not  only,  as  is  laid  down  in 
the  principal  case,  from  the  extreme  difficulty  attending  the  process  of  parti- 
tion at  law,  but  also  from  the  inadequacy  of  courts  of  law,  by  the  writ  of  par- 
tition to  deal  properly  with  those  cases  in  which  partition  was  often  desired. 
Many  instances  might  be  mentioned,  in  which  the  deficiency  of  courts  of  law 
in  proceedings  on  the  writ  of  partition  was  supplied  in  equity,  which  appears, 
in  an  enlarged  and  liberal  manner,  to  have  acted  upon  the  well-known  rule  of 
the  civil  law  :  ''  In  communione  vel  societate  nemo  compellitur  invitus  deti- 
neri." — Cod.  Lib.  3,  tit.  37,  1.  5.  But  as  the  writ  of  partition  has  been  abo- 
lished, (see  3  &  4  "Will.  4,  c.  27,  s.  36,)  so  that  equity  has  now  exclusive 
jurisdiction,  it  seems  immaterial  further  to  investigate  this  subject. 

Previous  to  4  &  5  Vict.  c.  35,  the  court  of  equity  had  no  power  to  direct 
the  partition  of  copyholds  nor  of  customary  freeholds :  it  is  given,  however, 
by  the  85th  section  of  that  Act,  {Horncastle  v.  Charlesworth,  11  Sim.  315: 
t/bpe  V.  Morshead,  6  Beav.  213 ;)  nevei'theless,  before  the  passing  of  that  Act, 
the  Court  might  decree  specific  performance  of  an  agreement  to  divide  copy- 
holds, {Bolton  V.  Ward,  4  Hare,  530 ;)  or  where  there  were  both  freeholds  and 
copyholds  to  be  divided,  the  Court  might  direct  such  a  partition  as  to  give  the 
entire  copyhold  to  one  party,  and  the  freehold,  or  a  part  of  the  freehold,  to 
the  other,  (Dillon  v.  Cojjjnn,  6  Beav.  217,  n. ;  Jojk  v.  Morsliead,  6  Beav. 
217,  n.) 

A  decree  of  partition  is  a  matter  of  right :  Baring  v.  Nash,  IV.  &  B. 
554;  Parher  v.  Gerard,  Amb.  236,  And  it  is  no  objection  to  a  bill  for 
partition,  that  the  interests  of  all  parties  will  not  be  finally  bound  by  it. 
Consequently,  a  decree  may  be  obtained  either  by  or  against  a  person  havin^^ 

1  March  15,  1811.  •  Es  relatione. 


(540  PARTITION. 


only  a  limited  interest  as  tenant  for  life,  {Gaskell  v.  Gashell,  6  Sim.  G43 ;)  or 
tenant  for  life  determinable  upon  marriage,  {Hohson  v.  Sherwood,  4  Beav. 
184;)  or  a  tenant  for  a  term,  (Baring  v.  Nash,  1  V.  &  B.  551;  Jleaton  v. 
Deardcn,  16  Beav.  147 ;)  or  where  there  are  remaindermen  who  may  come 
into  esse'and  be  entitled,  for  they  will  be  bound  by  a  decree  made  against  the 
tenant  for  life.  {Wills  v.  Slade,  6  Ves.  498.)  And  in  Gaskell  v.  GaskeU,  6 
Sim.  (543,  Sir  L.  Shadwcll  held,  that  a  decree  for  partition  would  be  binding 
on  the  unborn  sons  of  the  tenant  for  life  of  an  undivided  moiety  of  an  estate, 
who  when  they  came  into  esse,  would  be  tenants  in  tail ;  but  *as  an 
[*396]  agreement  for  a  partition  had  been  entered  into  between  the  tenant 
for  life  and  the  owners  of  the  fee,  of  the  other  moiety,  an  inquiry  was  directed, 
whether  it  would  be  for  the  benefit  of  the  future  issue  of  the  plaintiff,  that 
the  ao-reement,  either  with  or  without  variations,  should  be  carried  into  effect. 
And  Ills  Honor  said,  that,  in  Martijn  v.  Ferryman,  (1  Ch.  Rep.  235,)  the 
Court  decreed  a  partition,  notwithstanding  femes  covert,  infants,  and  incum- 
brancers, were  concerned. 

A  partition,  however,  appears  not  to  be  properly  incident  to  a  foreclosure  or 
redemption  suit  in  such  a  way,  that  the  owners  of  the  equity  of  redemption 
can  be  allowed  to  insist  on  it  against  the  will  of  the  mortgagee,  who  has  no 
interest  in  the  question  :  Watkins  v.  Willia77is,  3  Mac.  &  G.  622. 

The  title  of  the  plaintiff  to  an  interest  in  the  property  of  which  he  seeks 
partition,  must  be  shown,  and  if  he  can  show  none,  his  bill  will  be  dismissed  : 
Parker  v.  Gerard,  Amb.  236;  Jape  v.  Morshead,  6  Beav.  213. 

Where,  however,  there  is  only  a  small  failure  in  the  proof  of  title,  or  the 
interest  of  the  parties  in  the  property  are  uncertain,  they  may  be  ascertained 
by  a  reference,  but  this  must  be  done  previous  to  a  commission  issuing ;  for, 
as  is  laid  down  in  the  principal  case,  it  is  not  the  duty  of  the  commissioners 
to  ascertain  the  proportions  and  rights  of  the  parties :  their  duty  commences 
when  they  are  ascertained,  and  they  will  then  have  to  make  a  division  between 
the  parties  in  those  ascertained  proportions :  Calmady  v.  Cahnady,  2  Ves. 
jun.  568;  Cole  v.  Sewell,  15  Sim.  284;  Jojye  v.  iMorshead,  6  Beav.  213.  The 
uncertainty,  therefore,  of  what  are  the  shares  of  the  different  parties,  is  an 
objection,  not  to  partition  altogether,  but  to  partition  until  such  shares  have 
been  ascertained. 

(3n  the  death,  after  decree,  of  a  person  entitled  to  a  share,  the  Court  will 
direct  in  case  he  has  devised  it,  that  it  should  be  allotted  to  his  devisee : 
Valentine  v.  Middleton,  2  Ir.  Ch.  Rep.  93. 

The  inconvenience  or  difficulty  in  making  a  partition  will  be  no  objection  to 
a  decree.  See  Warner  v.  Baynes,  Amb.  589 ;  Farkcr  v.  Gerard,  Amb.  236. 
So  in  Tiirner  v.  Morgan,  8  Ves.  143,  there  was  a  decree  in  a  partition  of  a 
sin"le  house  and  Sir  Samuel,  Romilly,  in  his  argument,  mentions  the  case  of 
onc"^^  Benson,  an  attorney  at  Cockermouth,  where  the  partition  was  actually 
carried  into  effect  by  building  up  a  wall  in  the  middle  of  the  house  j  and  it 
appears  from  a  note  in  the  principal  case,  (ante,  p.  385,)  that  after  the  com- 
mission in  Turner  v.  Morgan  had  been  executed,  an  exception  was  taken  by 


AGAR     V.     FAIRFAX.  641 

the  defendant,  on  the  ground  that  the  commissioners  allotted  to  the  plaintiff 
the  whole  stack  of  chimneys,  all  the  fire-places,  the  only  staircase,  and  all  the 
conveniences  *in  the  yard ;  but  Lord  Eldon  overruled  the  exception,  p-j^on-T 
saying,  he  did  not  know  how  to  make  a  better  partition  for  them ;  L  ■* 
that  he  had  granted  the  commission  with  great  reluctance,  but  was  bound  by 
authority,  and  it  must  be  a  strong  case  to  induce  the  Court  to  interpose,  as  the 
parties  ought  to  agree  to  buy  and  sell. 

It  is  not,  however,  necessary  that  every  house  on  an  estate  should  be 
divided,  if  a  sufficient  part  of  the  whole  can  be  allotted  to  each  ;  and  in  making 
a  division  the  Court  may  direct  the  convenience  of  the  parties  to  be  taken  into 
consideration.  Thus,  in  The  Earl  of  Clarendon  v.  Hornhy,  1  P.  Wms.  446, 
a  partition  was  decreed  of  the  estate  lately  Sir  Joseph  Williamson's,  two-thirds 
whereof  belonged  to  Lady  Theodosia  Bligh,  and  one-third  to  the  defendant 
Hornby ;  the  estate  consisted  (amongst  other  things)  of  a  great  house,  called 
Cobham  House,  and  Cobham  Park,  in  Kent,  and  of  farms  and  lands  about  it 
of  £1000  a  year;  the  defendant  Hornby  insisted  to  have  a  third  part  of  the 
house,  and  also  a  third  part  of  the  park  assigned  to  him  by  the  commissioners 
who  were  to  make  the  partition.  But  Lord  Macclesfield  recommended,  that, 
since  the  plaintiff  Bligh  and  his  wife  were  to  have  two-thirds,  that  the  seat 
and  park  should  be  allowed  to  them,  and  that  a  liberal  allowance  out  of  the 
rest  of  the  estate  should  be  made  to  the  defendant,  in  lieu  of  his  share  of  the 
house  and  park.  "  Care,"  said  his  Lordship,  "  must  be  taken  that  the  defen- 
dant Hornby  shall  have  a  third  part  in  value  of  this  estate ;  but  there  is  no 
color  of  reason  that  any  part  of  the  estate  should  be  lessened  in  value,  in  order 
that  the  defendant  Hornby  should  have  one-third  of  it ;  now,  if  Mr.  Hornby 
should  have  one-third  of  the  house  and  of  the  park,  this  would  very  much 
lessen  the  value  of  both. 

"  If  there  were  three  houses  of  different  value  to  be  divided  amongst  three, 
it  would  not  be  right  to  divide  every  house,  for  that  would  be  to  spoil  every 
house;  but  some  recompense  is  to  be  made,  either  by  a  sum  of  money,  or  rent 
for  owelty  of  partition  to  those  that  have  the  houses  of  less  value. 

''  It  is  true,  if  there  were  but  one  house  or  mill,  or  advowson  to  be  divided, 
then  this  entire  thing  must  be  divided  in  manner  as  the  other  side  contended ; 
secus  when  there  are  other  lands,  which  may  make  up  the  defendant's  share. 

"  By  the  same  reason  every  farm-house  upon  the  estate  must  be  divided, 
which  would  depreciate  the  estate,  and  occasion  perpetual  contention  ;  and  it 
may  be  the  intent  of  the  defendant,  when  this  partition  is  made,  to  compel  the 
plaintiff  to  give  the  defendant  forty  years'  purchase  for  his  third  of  the  house 
and  park."  And  see  ^Watson  v.  Duke  of  Northnmherland,  11  Ves.  r^ono-r 
162;  Lister  v.  Lister,  3  Y.  &  C.  Exch.  Ca.  540.  ^  ""     -' 

In  a  recent  case,  where  a  partition  had  been  directed  between  two  co- 
heiresses. Sir  R.  T.  Kindersley,  V.  C,  said  :  "  It  appears  to  me  what  the  com- 
missioners ought  to  do  in  this  case  is,  that  having  divided  the  property  into 
two  equal  parts,  they  should  consider  all  the  circumstances  of  the  parties  and 
the  property.     Suppose,  for  example  (which  sometimes  happens,)  that  one  of 

VOL.    II. 11 


642  PARTITIOX. 


tlie  parties  has  property  in  a  particular  county  or  parish,  and  that  one  of  the 
allotments  is  contiguous  to  the  property  already  belonging  to  one  party,  and 
there  is  another  allotment  not  contiguous,  that  would  be  a  good  ground,  conte- 
risparihus  for  allotting  that  particular  portion  to  the  individual  to  whom  it  is 
much  more  convenient  to  have  it  than  the  other.  They  may  also  take  into 
consideration  the  circumstance  that  one  of  these  is  the  eldest  daughter,  and 
therefore,  although  she  has  no  right  of  priority  of  choice,  still  her  being  the 
elder  is  a  circumstance  which  the  commissioners  may  consider  to  be  a  ground, 
cctteris  paribus,  of  coming  to  a  decision  on  the  allotment.  So,  again,  you 
have  the  circumstance  that  she  is  a  married  lady,  and  that  her  husband  has 
taken  the  family  name,  and  has  no  mansion,  and  it  is  proposed  that  they  should 
keep  up  the  family  mansion ;  and  when  the  commissioners  are  looking  into  the 
matter,  they  must  exercise  their  discretion,  and  give  the  lots  with  reference 
to  that  state  of  circumstances ;  although  the  fact  of  the  plaintiff  being  the 
eldest  daughter  constitutes,  as  I  conceive,  no  right  or  claim  under  the  com- 
mission to  priority  of  choice."  Per  Sir  R.  T.  Kindersley,  V.  C,  in  Canning  v. 
Canning,  2  Drew.  436. 

If  the  commissioners  can  find  nothing  to  guide  their  discretion,  as  a  last  re- 
sort they  may  draw  lots.  lb.  437.  If  they  cannot  agree  as  to  what  they 
ouo'ht  to  do,  they  ought  to  make  separate  returns,  so  that  the  Court  may  deal 
with  the  separate  returns  as  it  may  think  advisible,  and  not  a  joint  return, 
saying  they  cannot  agree.  lb.  437,  438.  The  Court  has  no  authority  where 
the  commissioners  cannot  agree  to  appoint  a  person  to  draw  lots.     lb.  438. 

Moreover,  for  the  sake  of  convenience,  in  equity  a  recompense  may  be  made, 
either  by  a  sum  of  money,  or  rent  for  equality,  or  owelty  of  partition  :  The 
Earl  of  Clarendon  v.  Eornhy,  1  P.  Wms.  446;  Warners.  Baynes,  Amb. 
589  ;  Story  v.  Johnson,  1  Y.  &  C.  Exch.  Ca.  538  ;  S.  C,  2  Y.  &  C.  Exch.  Ca. 
586,  610,  611.  This  could  not  have  been  done  under  the  writ  of  partition  at 
law:  Co.  Litt.  176,  a.,  b.,  168,  a.  Littleton  has  indeed  spoken  of  a  rent- 
charge  for  owelty,  or  equality  of  partition  :  Litt.  251.  But,  as  observed  by 
„  Mr.  Justice  Story,  this  is  not  in  a  *case  of  compulsory  partition  by 
•-  writ,  but  of  a  voluntary  partition  by  deed  or  parol  :  1  Story,  Eq.  Jur. 

534,  n.  4. 

But  the  commissioners  themselves  unless  directed  by  a  decree,  {Briant  v. 
Mann,  Seton  on  Decrees,  812,  2nd  ed.)  have,  it  seems,  no  power  to  award 
sums  to  be  paid  for  owelty  of  partition  :  such  power  rests  with  the  Court ;  and 
in  Mole  v.  Mansfield,  15  Sim.  41,  where  the  commissioners  had  awarded  cer- 
tain sums  to  be  paid  for  such  purpose.  Sir  L.  Shadwell,  V.  C,  said,  they  had 
no  power  to  do  so ;  and,  one  of  the  parties  being  an  infant,  he  directed  the 
Master  to  inquire  and  state  whether  it  was  fit  and  proper  that  the  sums 
awarded  should  be  accepted.-    See  Peers  v.  Keedham,  19  Beav.  316. 

Although  in  point  of  law,  a  defendant  to  a  bill  for  partition  may  not  have 
a  lien  on  the  premises  for  money  expended  in  buildings  and  improvements, 
the  plaintiff  will  not  be  allowed  to  take  advantage  of  that  expenditure  without 
making  an  allowance  ;  the  Court,  therefore,  will  not  interfere  but  on  such 


AGAR     V.     FAIRFAX.  643 


terms,  and  will  order  a  reference  to  take  an  account  of  what  lias  been  ex- 
pended necessarily,  or  with  the  concurrence  of  the  plaintiif :  Sican  v.  Swan, 
8  Price,  518.  And  where  one  joint  owner  appears  to  have  received  more  than 
his  share  of  the  rents  and  profits  of  the  estate,  the  Court  will  direct  an  account, 
and  will  not,  in  analogy  to  proceedings  at  law  for  a  partition,  confine  its  relief 
merely  to  partition,  {Lorimer  v.  Lorimer,  5  Madd.  363  ;  Hill  v.  Fulhrook, 
Jac.  574;  Story  v.  Johnson,  1  Y.  &  C.  Exch.  Ca.  598  ;  S.  C,  2  Y.  &  C. 
Exch.  Ca.  586 ;)  or  if  he  has  been  in  possession,  he  will  be  charged  an  occu- 
pation rent,  (^Turner  v.  Morgan,  8  Ves.  145.) 

A  mill  may  be  divided  by  giving  to  the  parties  every  other  toll-dish,  as 
would  have  been  done  at  law  in  case  of  the  writ  de  partitione  facienda;  and 
in  this  case  aequitas  sequitur  legem  :  Earl  of  Clarendon  v.  Hornhi/,  1  P. 
Wms.  447,  per  Lord  Macclesfield. 

It  was  also  said  by  Lord  Macclesfield,  that  an  advowson  might  be  divided 
by  giving  every  other  presentation  to  the  church.  lb.  In  the  recent  case, 
however,  of  Johnstone  v.  Baher,  6  De  Gr.  Mac.  &  G-.  439,  the  right  to  present 
to  an  advowson  being  vested  in  tenants  in  common,  it  was  held  by  the  court 
of  appeal  in  chancery  overruling  the  decision  of  Sir  John  Romilly,  M.  R. 
(22  Beav.  562,)  that  the  right  to  nominate  was  not  to  be  exercised  according 
to  seniority  but  was  to  be  determined  by  lot. 

In  such  cases,  the  Court  would,  it  seems,  direct  the  partition  at  once,  by 
decree,  without  resorting  to  a  commission  :  Bodicoate  v.  Steers,  1  Dick.  69  ; 
Seton  on  Deci-ees,  199,  317,  2d  ed. 

Partition  of  a  manor  may  be  decreed  :  Sparroio  v.  Fiend,  Dick.  348  ; 
Hanhury  v.  Hussey,  14  Beav.  152 ;  Ley  v.  Cox,  lb.  157. 

*A  partition  never  aflfects  the  rights  of  third  parties  ;  for  instance,   r;!;  i  aa-i 
in  the  principal  case,  it  was  held,  that  the  rights  of  common  of  others 
over  the  soil  and  freehold,  which  the  parties   to  the  bill  had  in  common 
amongst  them,  would  not  be  affected  by  the  partition. 

For  this  reason,  as  a  mortgagee  of  the  premises  is  entitled  to  the  whole,  and 
not  affected  by  a  partition,  he  will  not  be  a  necessary  party  to  the  suit : 
Swan  V.  Swan,  8  Price,  518. 

Where,  in  a  suit  for  partition,  the  defendants  are  desirous  that  there  shall 
be  no  partition  of  their  several  shares,  the  partition  may  be  confined  to  the 
aliquot  share  of  the  plaintiff :   Hohson  v.  Sherwood,  4  Beav.  184. 

Where  the  shares  have  been  allotted  to  each  of  the  parties  by  the  commis- 
sioners, the  partition  is  perfected  by  reciprocal  conveyances ;  but  if  infants 
are  parties,  the  conveyances  will  be  respited  until  they  come  of  age,  and  a  day 
will  be  given  them  to  show  cause  against  the  decree.  See  Brook  v.  Hertford, 
2  P.  Wms.  518,  519  ;  Tuckfield  v.  Buller,  1  Dick.  240  ;  Amb.  197;  Tliomas  v. 
Gyles,  2  Vern.  232;  Wills  v.  Slade,  6  Ves.  498;  Attorney- General  v. 
Hamilton,  1  Madd.  214.  Where,  however,  the  legal  estate  of  the  share  in 
which  an  infant  is  beneficially  interested,  is  vested  in  trustees,  the  order  need 
not  contain  a  direction  for  the  infant  to  execute  a  conveyance  when  of  age,  as 
the  decree  of  the  Court  will  bind  the  equitable  interest  of  the  infant,  and  the 


644  PARTITION. 


trustees  may  make  an  immediate  conveyance  of  the  legal  estate  :    Cole  v. 
SeweU,  17  Sim.  40. 

It  seems  now  that  under  the  Trustee  Act,  1850,  ss.  7  and  30,  the  Court,  in 
a  partition  suit,  instead  of  giving  an  infant  a  day  to  show  cause,  may  declare 
him  a  trustee  of  such  parts  of  the  property  as  are  allotted  to  other  parties  : 
Bowra  V.  Wrltjht,  4  De  Gex  &  Sm.  265.  Partition  at  law,  in  this  respect, 
differed  from  partition  in  equity,  for  in  the  former  no  conveyances  were  re- 
quisite, as  it  operated  by  the  judgment  of  the  court  of  law,  in  pursuance  of 
which,  possession  was  at  once  delivered  up,  and  the  rights  of  all  parties  were 
thereupon  concluded.     See  Whaley  v.  Baicson,  2  S.  &  L.  371,  372. 

The  rule  laid  down  by  the  Lord  Chancellor  in  the  principal  case,  as  to  costs, 
has  since  been  universally  adopted,  viz.,  that  as  a  party  comes  into  equity, 
instead  of  going  to  law,  for  his  own  convenience,  the  rule  of  law  will  be 
adopted,  and  therefore  no  costs  will  be  given  until  the  commission  ;  but  that 
the  costs  of  issuing,  executing,  and  confirming  the  commission,  shall  be  borne 
by  the  parties  in  proportion  to  the  value  of  their  respective  interests,  without 
any  costs  of  the  subsequent  proceeding:  see  Baring  v.  Nash,  1  V.  &  B.  554; 
^Yhaley  v.  Daicson,  2  S.  &  L.  371 ;  BaJfe  v.  Rcdmgton,  *2  Jr.  Ch. 
■-  -'  Rep.  324.  The  costs  of  mutual  deeds  of  partition  and  of  having  the 
same  settled  by  the  Master,  are  subsequent  costs,  and  must  be  borne  by  the 
parties  respectively:  Balfe  \.  Redington,  2  Jr.  Ch.  Rep.  324;  Beames  on 
Costs,  50 ;  but  if  a  defendant  sets  up  a  bar  to  partition,  as  for  instance  an 
ao-rcement,  and  it  turns  out  that  he  is  not  entitled  to  the  benefit  of  the  agree- 
ment he  has  relied  on,  he  will  be  obliged  to  pay  such  proportion  of  the  costs 
as  have  been  occasioned  by  his  setting  it  up  :  Morris  v.  Tlmmins,  1  Beav. 
411,418. 

In  a  recent  case  in  a  suit  for  partition,  the  plaintiff  claimed  as  heir  of  a  de- 
ceased tenant  in  common.  The  defendant  ignored  the  plaintiff's  title  as  heir, 
and,  at  the  original  hearing,  an  inquiry  as  to  the  fact  was  directed,  which  was 
found  in  favor  of  the  plaintiff.  It  was  held  by  Sir  John  Romilly,  M.  R.,  that 
the  defendant  was  not  liable  to  pay  the  costs  of  the  inquiry,  except  so  far  as 
they  might  have  been  increased  by  independent  evidence  adduced  by  the  de- 
fendant, in  opposition  to  the  plaintiff's  title. 

On  the  cause  coming  on  for  further  consideration,  the  defendant,  who  was 
entitled  to  a  moiety,  insisted  that  she  was  purchaser  for  valuable  consideration 
of  the  other  moiety.  It  was  held  by  his  Honor  that,  although  no  such  point 
had  been  raised  by  her  answer,  she  was  still  entitled  to  make  it  available,  and 
an  inquiry  was  directed  :  Lyne  v.  Lync,  21  Beav.  318. 

The  costs  of  infants,  {Cox  v.  Cox,  3  K.  &  J.  544,)  or  of  a  lunatic. 
Singleton  v..  Hoplcins,  (4  W.  R.  107,)  may  it  seems  be  charged  upon  and 
ordered  to  be  raised  out  of  the  shares  allotted  to  them. 

As  to  the  decree  made  with  respect  to  the  title  deeds  on  a  partition,  see 
Lord  Cardigan  v.  Montagu,  Seton  on  Decrees,  814  j  Jones  v.  Robinson,  3 
De  G.  Mac.  &  G.  910. 


AGAR     V.     FAIRFAX.  645 

As  to  proceedings  under  a  decree  for  a  partition,  and  exceptions  to  the  re- 
turn of  the  commissioners,  see  Daniel's  Ch.  Prac.  863,  3rd  edit. 

A  partition  will  not  be  set  aside  on  light  grounds,  or  for  light  matters,  or 
for  mere  inequality  of  value  in  the  allotments,  if  in  making  them'  the  Com- 
missioners have  honestly  exercised  their  own  judgment ;  per  Sir  J.  Romilly, 
M.  R.  19  Beav.  320. 

A  return  will  be  set  aside  if  it  be  not  made  by  the  Commissioners  in  the 
exercise  of  their  discretion,  but  according  to  an  understanding  between  some 
of  the  parties.  Thus,  in  Peers  v.  Necdham,  19  Beav.  316,  where  under  a 
decree  for  partition  among  three  tenants  in  common,  which  did  not  empower 
the  Commissioners  to  order  owelty  of  partition,  the  Commissioners,  upon  some 
previous  understanding  that  two  of  the  tenants  in  common  were  willing  to  take 
one  of  the  two  houses  *comprising  the  property,  without  severance,  r-^);  i  aq-i 
allotted  that  house  to  them,  and  the  other  to  the  third  tenant  in  com- 
mon,  the  return  was  suppressed. 

Sometimes  the  Court  will  approve  of  a  partition  without  a  commission. 
Thus,  in  Brassey  v.  Chamhers,  4  De  G.  Mac.  &  G.  528,  where  trustees,  with 
a  power  of  sale  (which  it  seems  does  not  authorize  them  to  concur  in  a  parti- 
tion,) had  nevertheless  done  so,  and  it  was  shown  to  be  beneficial  to  the  ces- 
tuis  que  trust,  who  were  infants,  the  Lord  Justices,  on  a  claim  to  which  the 
infants  were  parties,  made  a  decree  that  the  lands  should  be  taken  to  be 
divided  according  to  the  partition  already  made  :  and  see  Stanley  v.  Wrigley, 
3  S.  &  Giff.  18.  ^ 

With  regard  to  the  jurisdiction  of  the  inelosure  commissioners  as  to  parti- 
tion, see  8  &  9  Vict.  c.  118,  ss.  90,  91,  and  11  &  12  Vict.  c.  99,  ss.  13  and  14. 

By  the  Incumbered  Estates  Act,  power  was  given  to  the  Commissioners  to 
make  partition.     See  In  re  Wilkins,  4  Ir.  Ch.  Rep.  575. 

As  to  dotoer.'] — Upon  the  same  principle,  as  in  cases  of  partition,  although 
dower  was  originally  a  mere  legal  demand,  a  widow  being  a  joint  owner  is 
entitled  in  equity  to  an  assignment  of  one-third  of  the  lands  of  which  her  hus- 
band was  seised  in  fee  or  in  tail,  which  her  issue  might  by  possibility  have  in- 
herited as  her  dower.  She  has  still  a  remedy  at  law  by  writ  of  dower,  or  writ 
of  dower  unde  nihil  habet ;  see  3  &  4  Will.  4,  e.  27,  s.  36.  The  difficulty, 
however,  of  proceeding  at  law,  together,  probably,  with  the  necessity  of 
obtaining  a  discovery  from  the  heir,  devisees,  or  trustees,  has  given  equity  a 
concurrent  jurisdiction  with  courts  of  law,  which,  it  seems,  will  be  exercised 
without  its  being  shown  whether  such  difficulty  actually  exists  or  not.  For 
an  able  exposition  of  the  law  of  dower,  see  the  judgment  of  Lord  Alvanley, 
M.  R.,  in  the  leading  case  of  Curtis  v.  Curtis,  2  Bro.  C.  C.  620 ;  and  see 
Mtindy  V.  3Iundy,  2  Ves.  jun.  122 ;  Pidteney  v.  Warren,  6  Ves.  89  ;  Strick- 
land V.  Strickland,  6  Beav.  77,  81. 

Widows,  previous  to  3  &  4  Will.  c.  105,  were  only  dowable  out  of  legal 
estates  ;  but  by  that  Act  every  woman  married  after  the  1st  of  January,  1834, 
is  dowable  out  of  her  husband's  equitable  estates  of  inheritance.  The  Act, 
however,  has  put  her  right  to  dower  entirely  in  the  hands  of  her  husband, 


646  PARTITION. 


who  may  defeat  it  by  conveyance,  or  devise,  or  by  a  simple  declaration  that 
his  estate  shall  be  exempt  from  it. 

The  dower,  however,  of  a  woman  married  after  3  &  4  Will.  4,  c.  105,  came 
into  operation,  out  of  an  estate  made  subject  to  dower  by  that  act,  will  not  be 
excluded  by  a  declaration  against  dower  contained  in  a  conveyance  'prior  to 
r*J.n'^1  *^^^*  ^^*''  (-^''^  ^*  ^^^^^^  20  Beav.  *508,)  and  a  widow's  dower  and 
^  ""^  freebench  is  not  by  Sir  John  Romilly's  Act,  (3  &  4  Will.  4,  c.  104,) 
nor  by  the  Dower  Act,  (3  &  4  Will.  4,  c.  105,)  rendered  liable  to  the  mere 
debts  of  her  husband  :  see  Spjer  v.  Hyatt,  20  Beav.  621,  623,  where  Sir 
John  Romilly,  M.  11.,  observes,  that  "what  is  claimed  by  or  comes  to  the 
widow  is  no  part  of  what  the  intestate  is  seised  of  at  his  death.  He  dies 
seised  of  lands  subject  to  the  widoio's  right  to  dower,  and  it  is  only  that  which 
becomes  subject  to  the  payment  of  his  debts." 

The  Dower  Act  does  not  apply  to  freebench,  see  Smith  v.  Adams,  5  De  Gr. 
Mac.  &  Cr.  712.  There  the  purchaser  of  a  copyhold,  held  of  a  manor,  the 
custom  of  which  entitled  widows  of  the  copyholders  to  freebench  in  one 
moiety  of  the  land  of  which  their  husbands  died  seised,  took  a  surrender,  but 
died  before  admittance.  It  was  held  by  the  Lords  Justices  reversing  the  de- 
cision of  Sir  John  Romilly,  M.  R.,  (reported  18  Beav.  499,)  that  the  widow 
was  not  entitled  to  freebench  a  Is  law  or  in  equity. 

If  the  widow's  right  to  dower  be  disputed,  an  issue  may  be  directed, 
(^Mundy  V.  Mundy,  2  Ves.  jun.  122  ;)  or  the  bill  retained  for  a  certain  time, 
with  liberty  to  the  widow  to  bring  a  writ  of  dower,  as  she  may  be  advised, 
{Curtis  v.  Curtis,  2  Bro.  C.  C.  620  ;  D'Arcy  v.  Blalce,  2  S.  &  L.  390  ;)  and 
if  necessary,  an  inquiry  may  be  directed  as  to  the  lands  of  which  she  is 
dowable.  {Meggot  v.  Meggot,  Setou  on  Decrees,  331,  2nd  edit.)  The  right 
being  established,  and  the  property  out  of  which  the  widow  is  dowable  being 
ascertained,  the  next  step  is  to  ascertain  the  di)wcr ;  and  this  may  be  done 
either  by  a  reference,  (^Goodenough  v.  Goodenough,  2  Dick.  795;)  or  by 
directing  a  commission  to  issue,  which  is  made  out,  executed,  and  returned  in 
the  same  manner  as  a  commission  of  partition,  (  Wild  v.  Wells,  1  Dick.  3  ; 
Huddlestone  v.  Iluddlestone,  1  Ch.  Rep.  38 ;  Lucas  v.  Calcraft,  1  Bro.  C  C. 
133  ;  2  Dick.  594 ;  Mundy  v.  3Iundy,  2  Ves.  jun.  125  ;  4  Bro.  C.  C.  294  j 
Daniel's  Ch.  Prac.  879,  3rd  edit. ;  Tudor's  L.  C.  Real  Prop.  51.) 


Whenever  partition  could  be  com-  the    plaintiff;    Wisely   v.   Findlay,  3 

pelled  at  law,  it  is  a  matter  of  right,  Randolph,  361;  Vastleman  v.  Vcitch, 

not  of  grace,  in  equity,  and  it  cannot  lb.  598 ;  Bailey  v.  Sissori,  1   Rhode 

be  refused  in  cither  jurisdiction,  on  Island,    233;     Otlry    v.    3P Alpine's 

the  ground  of  the  hardship  or  incon-  Heirs,  2  Gratt.  340;   Wood  v.  Little, 

venience  which  will  result  from  the  35  Maine,  107;   Hanson  v.   Willard, 

divison  of  the  property  prayed  for  by  12  Id.  142 ;  Allen  v.  BerJdey,  1  Speer, 


AGAR     V.     FAIRFAX. 


647 


264  ;  Oldham  v.  Jones,  5  B.  Monroe, 
458;  Holmes  v.  Holmes,,  2  Jones, 
Eq.  334.  The  power  extends  to  in- 
corporeal hereditaments  as  well  as  to 
those  which  are  corporeal,  and  may 
be  exerted  over  a  right  to  pass  and 
repass  over  the  beach,  and  gather  sea- 
weed from  it  for  the  purposes  of  ma- 
nure ;  Bailey  v.  JSisson.  And  where 
the  existence  of  an  estate  for  life  in 
the  plaintiff,  as  tenant  by  the  curtesy, 
would  be  an  obstacle  to  his  success  at 
law,  he  may  still  apply  to  equity  for  a 
partition  of  the  reversion  in  which  he 
has  acquired  an  undivided  interest 
by  purchase;  Odcy  v.  ]\P Alpine's 
Heirs.  But  equity  cannot  decree 
a  partition  unless  the  titles  of  both 
parties  are  clear;  Garrett  v.  White,  3 
Iredell,  Eq.  113;  Currin  v.  Sproull, 
10  Grrattan,  145.  When,  therefore, 
the  title  of  the  plaintiff  is  denied  on 
legal  grounds,  and  an  adverse  title  set 
up  in  the  defendant  to  the  whole  pro- 
perty, equity  will  not  proceed  to  a 
partition,  but  will  retain  the  bill  until 
the  question  is  determined  at  law; 
Wilkin  V.  Wilkin,  1  Johnson,  Ch. 
Ill ;  Manners  v.  Planners,  1  Green, 
Ch.  384 ;  Lucas  v.  King,  2  Stockton, 
Ch.  277  ;  Garrett  v.  White.  It  would 
seem,  moreover,  that  where  the  plain- 
tiff and  defendant  claim  different 
shares  under  the  same  title,  the  de- 
fendant cannot  resist  a  partition  by 
impeaching  the  conveyance  to  the 
plaintiff  on  the  ground  of  fraud,  which 
can  only  be  alleged  by  the  parties  to 
the  deed,  and  not  in  their  behalf  by  a 
stranger;  Wiseley  y.  Findlai/.  When, 
however,  the  title  set  up  against  the 
plaintiffs  is  equitable,  it  must  neces- 
sarily be  determined  upon  by  equity, 
subject  to  the  award  of  an  issue  to 
settle  questions  of  fact,  as  in  other 


cases  falling  within  the  exclusive  jur- 
isdiction of  equity ;  Coxe  v.  Smith,  4 
Johnson,  Ch.  271 ;  Foust  v.  Moor- 
man, 2  Carter,  17;  and  the  rule  is 
the  same  when  the  adverse  title,  al- 
though legal,  is  the  fruit  of  a  con- 
structive fraud,  for  which  no  redress 
can  be  had,  without  the  aid  of  the 
peculiar  powers  possessed  by  chan- 
cery; Ohert  v.  Ohert,  2  Stockton, 
Ch.  98. 

To  sustain  a  bill  for  partition,  the 
plaintiff  must  not  only  establish  his 
own  title,  but  he  must  show  that  the 
relation  between  it  and  that  of  the  de- 
fendant, is  such  as  to  entitle  him  to  a 
partition  as  against  the  latter;  Ram- 
say Y.  Bell,  3  Iredell,  Eq.  209.  In 
this  case,  the  court  dismissed  a  bill 
alleging  a  sole  seisin  in  the  plaintiff, 
and  a  pretended  title  to  part  of  the 
land  in  the  defendant.  But  where 
the  question  of  title  arises  as  between 
the  defendants,  the  existence  and  ex- 
tent of  the  plaintiff's  right  being  ad- 
mitted, the  court  will  allot  his  propor- 
tion to  him  in  severalty,  and  will  retain 
the  bill  to  give  the  defendants  an  op- 
portunity of  determining  their  claims 
at  law,  and  making  application  for  a 
commission  to  complete  the  partition 
as  between  them ;  Phelps  v.  Green,  3 
Johnson,  Ch.  302.  All  persons  en- 
titled to  or  claiming  an  interest  in  the 
land,  whether  legal  or  equitable,  are 
proper  parties  to  a  bill  for  partition, 
and  partition  may  be  awarded  as  be- 
tween tenants  in  common  of  an  equity 
of  redemption,  as  well  as  of  a  legal 
title.  But  the  bill  cannot  be  extended, 
so  as  to  embrace  mortgagees  or  judg- 
ment creditors,  whose  interest  in  the 
land  is  limited  to  holding  it  as  a  lien 
or  security  for  a  debt ;  Wotten  v.  Coj^e- 
land,  7  Johnson,  Ch.  140. 


648 


PARTITION. 


Nor  can  a  bill  be  sustained  to  set- 
tle questions  of  boundary  or  title  with 
adjacent  proprietors,  at  the  same  time 
■with  a  partition  between  tenants  in 
common  ;  Steicarf's  Heirs  v.  Coulter, 
4  Randolph,  74. 

It  seems  that  the  original  power  of 
a  court  of  equity  did  not  extend  to 
making  a  sale  for  the  purposes  of  a 
partition,  however  inconvenient  or  in- 
jurious the  consequences  of  an  actual 
division,  but  where  a  power  of  sale 
has  been  given  by  statute,  it  will  be 
enforced  in  chancery,  by  authorizing 
the  commissioners  to  sell  and  convey, 
instead  of  merely  directing  a  sale  by 
the  parties;  Thomjyson  v.  Hardnian, 
6  Johnson,  Ch.  436. 

The  powers  of  the  courts  of  com- 
mon law  and  of  equity,  in  cases  of 
partition,  have  been  greatly  enlarged 
by  the  course  of  decision  or  by  statute 
in  many  parts  of  this  country,  and 
now  extend  in  most  of  the  states  to 
dividing  or  selling  the  land,  as  may 
appear  best  suited  to  the  interests  of 
the  parties,  as  well  as  to  making  an 
unequal  division,  and  compensating 
the  inequality  by  a  rent-charge  grant- 
ed for  owelty  of  partition;  Holmes 
V.  Holmes,  2  Jones,  Equity,  334; 
Codman  v.  Tinhham,  15  Pick.  304 ; 
Hlgginhotham  v.  Short,  3  Cushman, 
160;  Wood  V.  Little,  35  Maine,  107. 
The  case  of  Smith  v.  Smith,  10  Paige, 
470,  although  decided  under  the  Re- 
vised Statutes  of  New  York,  may  be  re- 
ferred to  with  advantage,  as  illustrative 
of  the  change,  which  has  to  a  greater 
or  less  extent,  been  introduced  into  the 
law  of  the  rest  of  the  Union.  In  that 
case,  which  was  a  suit  brought  for  the 
pai-tition  of  a  mill  site,  it  appeared 
that  a  sale,  or  an  equal  division  of  the 
property,  would   be   disadvantageous 


to  the  interests  of  the  parties,  which 
would  be  best  promoted  by  dividing 
the  land,  and  making  the  share  of 
each,  subject  to  the  servitude  or  ease- 
ment of  the  mill  dam  for  the  benefit 
of  all.  In  making  the  decree,  which 
was  so  moulded  as  to  attain  this  ob- 
ject, the  court  held  the  following  lan- 
guage : 

**  Nor  does  there  appear  from  the 
testimony  to  be  any  difficulty  in  mak- 
ing an  actual  and  equitable  partition 
of  the  water  power  in  controversy,  so 
as  to  be  mutually  beneficial  to  each. 
For  it  is  not  necessary  to  divide  the 
waters  of  the  pond  by  horizontal  lines. 
The  land  under  the  water  and  the  dam 
may  be  thus  divided,  by  metes  and 
bounds ;  and  one  part  thereof  may  be 
assigned  to  each  party,  subject  to  the 
servitude  and  charge  of  keeping  up 
and  repairing  the  dam  on  that  part, 
by  the  one  to  whom  it  is  assigned,  for 
the  use  of  the  other,  as  well  as  for  his 
own  benefit ;  and  the  right  to  the  use 
of  the  half,  or  of  any  other  portion,  of 
the  waters  of  the  pond,  which  are  thus 
preserved,  may  be  assigned  to  the  par- 
ties respectively,  to  be  used  in  such  a 
manner  as  the  commissioners,  in  their 
report  of  the  partition,  may  direct. 
And  if  the  present  situation  of  the 
flumes,  and  of  the  gates,  cannot  be 
altered  without  injury  to  the  mills,  so 
as  to  prevent  one  party  from  obtaining 
or  using  more  than  his  equal  half  of 
the  water,  the  statute  has  wisely  pro- 
vided that  a  sum  may  be  decreed  to 
tho  other  party  for  owelty  of  partition. 
(2  R.  S.  330,  §  83.)  So  an  equitable 
partition  of  the  water  may  be  made, 
by  allowing  the  complainant  at  all 
times  to  have  sufficient  water,  to  be 
drawn  through  his  present  gateway, 
or  through  such  other  gateway  as  may 


AGAR     V.     FAIRFAX. 


649 


be  hereafter  constructed  in  lieu  of  it 
of  tbe  same  capacity  and  depth,  to 
work  his  present  machinery  for  so  long 
a  time  as  may  be  necessary  whenever 
he  may  have  any  grinding  to  do,  and 
by  requiring  the  defendant  to  shut 
down  his  gates  whenever  the  water 
gets  down  to  a  particular  mark,  to  be 
designated  in  the  report  for  that  pur- 
pose, and  keeping  them  shut  until  it 
rises  to  a  certain  other  point;  and 
awarding  to  the  defendant  a  compen- 
sation in  money,  as  an  equivalent  for 
such  a  special  privilege  in  the  use  of 
the  water.  Or  the  commissioners  may 
give  a  similar  privilege  to  the  defend- 
ant, as  to  both  or  either  of  his  mills, 
and  may  award  a  compensation  to  be 
paid  by  him  to  the  complainant,  as  an 
equivalent,  to  equalize  the  partition. 
So  they  may  direct  the  water  to  be 
used  in  the  way  suggested  by  the  wit- 
nesses, by  fixing  a  monument  or  mark 
in  the  pond,  in  a  permanent  situation, 
and  allowing  both  parties  to  draw  the 
water  from  the  pond,  for  the  use  of 
their  mills,  through  the  present  gate- 
ways, or  through  others  of  the  same 
depth  and  construction,  until  the 
water  is  drawn  down  to  a  specified 
mark  or  point  upon  the  monument; 
and  directing  that  both  parties  shall 
then  shut  down  their  gates  until  the 
water  has  risen  in  the  pond  to  another 
specified  point  or  mark  upon  such 
monument.  And  if  one  party  will, 
in  the  ordinary  use  of  his  mills  and 
his  present  gateways,  in  the  manner 
suggested,  get  more  than  his  fair  pro- 
portion of  the  water,  either  in  quan- 
tity or  in  value,  taking  one  portion  of 
the  year  with  another,  the  commis- 
sioners may,  in  their  report,  direct 
such  alteration  to  be   made   in   th  e 


depth  or  capacities  of  such  gateways 
as  will  render  the  use  of  the  water  of 
the  pond,  in  that  manner,  equal  be- 
tween the  parties.  Or  if  such  altera- 
tions cannot  be  made  without  dimi- 
nishing the  head  and  quantity  of  water 
required  for  the  propelling  of  the  ma- 
chinery of  the  mill  or  mills  of  either 
party,  they  may  award  a  sum  of  mo- 
ney to  be  paid  by  one  party  to  the 
other  for  owelty  of  partition.  In 
short,  the  commissioners  who  are  to 
make  the  partition,  may  divide  the 
dam  and  the  lands  under  the  water, 
and  may  make  such  provisions  for 
keeping  the  difi'erent  portions  of  the 
dam,  and  the  waste  gates  and  flumes 
in  the  same  in  repair,  and  such  regu- 
lations for  the  use  of  the  water  power 
which  is  not  capable  of  actual  parti- 
tion without  a  destruction  of  its  value, 
as  the  parties  might  make  by  a  parti- 
tion deed  between  themselves,  and  by 
agreeing  for  a  compensation  to  be  paid 
by  one  party  to  the  other,  if  neces- 
sary, so  as  to  make  that  partition  per- 
fectly equal;  so  far  as  human  judg- 
ment is  capable  of  producing  equali- 
ty in  such  a  case. 

"That  such  is  the  law,  in  connec- 
tion with  the  provision  of  the  revised 
statutes,  authorizing  this  court,  where 
an  equal  partition  of  the  property  can- 
not be  made  without  prejudice  to  the 
rights  and  interests  of  some  of  the 
parties,  to  decree  compensation  to  be 
made  by  the  one  to  the  other  to  pro- 
duce such  equality,  it  is  only  neces- 
sary to  refer  to  a  few  of  the  leading 
cases  on  this  subject. 

"  In  the  case  of  Hill  v.  Dei/,  (14 
"Wend.  Rep.  204,)  it  appeared  that 
the  commissioners  in  partition  had 
set  ofi"  to  one  of  the  parties  one  part 


650 


PARTITION. 


of  tlie  premises,  by  metes  and  bounds, 
and  anotlier  part  of  the  premises  to 
the  other  in  the  same  way ;  the  whole 
embracing  two  mills  upon  the  same 
stream,  the  one  below  the  other.    But 
in  their  report,  in  addition  to  the  land 
itself,  on  which  the  lower  mill  was 
situated,  they  had  given  to  the  party 
to  whom  that  part  of  the  land  was  set 
off,  the  easement  or  right  to  flow  back 
the  water  upon  the  land  assigned  to 
the  other,  in  the  same  manner  and  to 
the  same  extent  that  such  water  had 
been  flowed  back  previous  to  the  par- 
tition.    It  is  true,  the  question  there 
arose  upon  the  construction  of  the  re- 
port itself.     But  the  decision  of  the 
court  recognized  the  principle  that  the 
commissioners  in  partition  might  as- 
sign one  part  of  the   premises  to  a 
party,  charged   with  a  servitude   or 
easement  for  the  benefit  of  another 
party,  to  whom  a  distinct  portion  of 
the  land  was  assigned  by  metes  and 
bounds.     And  in  the  case  of  Morrill 
V.  Morrill,  (5  New  Hamp.  Kep.  134,) 
the  committee  appointed  by  the  court 
to  make  partition  of  a  mill  site  and 
mill   privileges,  assigned  to  some  of 
the  parties  distinct  portions  of  the  pre- 
mises by  metes  and  bounds,  with  the 
right  of  taking  from  the  river  within 
the  limits  of  the  lands  assigned  to 
them  respectively,  so  much  water  as 
would  flow  through  a  gateway  of  cer- 
tain prescribed  dimensions,  together 
with  a  passage  way  or  water  course 
through  the  portions  of  the  premises 
not  assigned  to  them.     And  the  court 
sustained  the  report  of  the  commit- 
tee ;  distinctly  placing  their  decision 
upon  the  principles  of  the  common 
law  upon  the  subject. 

<'  Warren   v.    Baijncs,   (2   Blunt's 


Ambler,  589,)  decided  by  Lord  Hard- 
wicke,   in  1750,  is  another  case,  in 
which  such  a  mode  of  making  par- 
tition of  property,  the  principal  value 
of    which    consisted   in    the   use   of 
water,  was   adopted.      An    easement 
in  the  land  leased  to  the  New  River 
Company,  at  an  annual  rent  for  the 
quantity  conveyed  in  each  pipe  laid 
down  by  the  company,  with  the  privi- 
lege of  laying  down  other  pipes  at  the 
same  rent.     And  there  were  also  two 
water  conduits  belonging  to  the  par- 
ties in  the  partition  suit,  one  of  which 
was  used  for  a  cold  bath  establishment, 
and  the  water  in  the  other   conduit 
was  running  to  waste.     And  in  de- 
creeing a  partition  of  the  property  be- 
tween the  owners  of  the  water  condu- 
its and  of  the  lands  through  which  the 
pipes  of  the  New  River  Company  were 
laid,  &c.,  and  directing  the  mode  of 
enjoyment  of  the  parts  set  ofi"  to  the 
owners  of  the  premises  in  severalty, 
Lord  Ilardwicke    directed    that   the 
rents  payable  in  respect  of  the  water- 
pipes  then  laid  by  the  company,  should 
be  put  into  one  lot,  and  the  other  part 
of  the  estate  of  equal  value  be  put  into 
another  lot,  and  that  in  case  the  com- 
pany should  lay  any  new  pipes  which 
should  run  partly  through  the   land 
which  should  be  allotted  to  the  plain- 
tifi",  and  partly  through  that  allotted 
to  defendant,  the  rent  for  such  new 
pipes  should  be  apportioned  between 
the  parties  according  to  their  respec- 
tive quantities  of  the  land  through 
which  the  same    should   run.     And 
that  the  conduit  in  which  the  water 
run  to  waste  should  be  allotted  to  one 
party,   and   the   other   conduit  with 
the  cold  bath  to  the  other ;  and  that 
the  party  to  whom  the  first  conduit 


WOOLLAM  V.     HEARN.                                        651 

was  allotted  should  not  convert  that  Clarendon  v.  Hornhi/,  1  Peere  Wms. 

conduit  into  a  cold  bath,  so  as  to  come  Kep.  446 ;  Lister  v.  Lister,  3  Younge 

in  competition  with  the  cold  bath  al-  &  Coll.  Exc.  Rep.  540.)" 
lotted  to  the  other  party.     (See  also 


SPECIFIC   PERFORMANCE. — PAROL  EVIDENCE, 

*WOOLLAM  V.  HEARN.  [*404] 

MAY  24,  25;  JUNE  3,  1802. 

reported  7  ves.  211. 

Distinction  between  seeking  and  resisting  Specific  Performance, 
AS  to  the  admission  of  Evidence.] — Though  a  defendant  resisting  a 
specific  performance,  may  go  into  parol  evidence  to  show  that,  hy  fraud, 
the  written  agreement  does  not  express  the  real  terms,  a  plaintiff  cannot  do 
so,  for  the  purpose  of  obtain  ing  a  specific  performance  with  a  variation. 

William  Hearn,  being  possessed  of  a  house  in  Ely  Place,  under  an  agree- 
ment for  a  lease  of  seven,  fourteen,  or  twenty-one  years,  from  the  25th  of 
December,  1794,  agreed  to  let  the  house  to  Penelope  Woollam,  for  seventeen 
years ;  and  a  memorandum,  dated  the  11th  of  December,  1798,  was  executed 
by  them,  stating  an  agreement  for  a  lease  to  the  plaintiflF  from  the  defendant 
for  seventeen  years,  to  commence  at  Christmas  next,  at  the  yearly  rent  of 
73?.  10s.,  the  tenant  paying  all  taxes  except  the  land-tax,  which  Hearn  agreed 
to  pay  :  the  lease  to  contain  all  usual  covenants,  and  also  covenants  that  no 
public  trade  should  be  carried  on  in  the  premises  :  and  that  no  alteration 
should  be  made  in  the  front ;  that  the  lessee  should  leave  the  premises  in 
tenantable  repair,  with  other  covenants  relative  to  the  situation  of  Ely  Place, 
as  being  extra-parochial. 

The  bill  was  filed  by  Mrs.  Woollam  against  Hearn,  stating,  that  the  rent  of 
73/.  10s.  was  inserted  by  mistake,  or  with  some  unfair  view ;  the  real  agree- 
ment being,  that  the  plaintiff  was  to  have  the  lease  upon  the  same  rent  as  the 
defendant  paid  to  his  lessor,  and  that  he  did  not  pay  *more  th^,n  £60  ;  r* i nf;-! 
and  in  confidence  that  a  lease  would  be  executed  to  her,  she  paid 
£60  to  the  defendant  at  the  time  of  executing  the  agreement,  being  the  moiety 
of  the  sum  which  the  defendant  alleged  he  had  laid  out  in  repairs.  She  also 
paid  38?.  15s.  Qd.  for  fixtures. 

The  bill  prayed  a  specific  performance,  and  that  the  defendant  may  be  de- 
creed to  execute  a  lease  according  to  the  agreement,  at  the  rent  of  £60,  or 
such  other  rent  as  the  defendant  paid  his  lessor. 

The  defendant  by  his  answer  denied  that  73?.  10s.  was  inserted  by  mistake, 
or  with  any  unfair  view ;  or  that  the  agreement  was,  that  the  plaintiff  should 


652  SPECIFIC     PERFORMANCE. — PAROL     EVIDENCE. 

pay  the  same  rent  as  the  defendant  paid,  which  he  admitted  to  be  £63.  He 
stated  that  he  believed  he  might  say,  in  the  course  of  the  treaty,  that  she 
would  have  the  premises  upon  the  same  terms  as  the  defendant  had ;  not 
meaning  that  she  was  to  have  them  at  the  same  rent,  but  that  she  would,  on 
the  whole,  have  them  upon  terms  of  equal  advantage  with  the  defendant, 
considering  the  money  he  had  expended  upon  them.  He  admitted  the  pay- 
ment of  £60,  stating  that  it  was  not  a  moiety  of  the  money  laid  out  by  him, 
though  at  the  time  of  payment  it  might  have  been  so  called. 

On  the  part  of  the  plaintiff,  her  son  stated  by  his  depositions,  that  when  he 
treated  with  the  defendant  for  a  lease  of  the  house,  he  said  he  had  got  a  lease 
of  it,  but  could  not  at  that  moment  lay  his  hands  upon  it;  that  he  did  not 
exactly  know  what  the  rent  was,  but  it  was  somewhere  about  £70  a  year; 
that  he  did  not  want  to  get  anything  by  .her,  and  she  should  have  the  house 
upon  the  same  terms  he  had  it  himself,  which  he  repeated  several  times  after- 
wards. The  plaintiff's  solicitor  stated,  that  the  defendant  repeatedly  said, 
upon  being  pressed  to  execute  a  lease,  that  the  plaintiff  held  the  house  upon 
the  same  terms  upon  which  he  held;  but,  when  the  deponents  proposed  to 
him  to  execute  an  assignment  of  the  original  lease,  he  objected,  that  it  was 
always  his  maxim  not  to  part  with  the  original  lease,  but  to  hold  it  in  his  own 
possession  for  his  security. 

r*4nn  ^^J^r.  RomUIy  and  Mr.  Wetherell,  for  the  plaintiff. — To  the  objec- 
tion, that  the  plaintiff  cannot  vary  the  written  agreement,  the  answer 
is,  that  this  is  a  case  of  fraud,  upon  which  you  must  have  recourse  to  parol 
evidence,  otherwise  it  cannot  be  made  out ;  and  that  takes  it  out  of  the  statute  ;^ 
Shirley  v.  Stratton,^  Young  v.  Clerk,^  Buxton  v.  Lister.^  These  are  cases  of 
defendants  resisting  the  performance  on  the  ground  of  fraud,  but  the  same 
principle  must  apply  to  the  case  of  a  plaintiff  complaining  of  fraud.  The  rule 
caveat  emptor  does  not  apply  in  this  instance.  A  person  buying  an  estate  has 
no  right  to  ask  the  vendor  what  he  gave  for  it.  But  this  is  very  different, 
amounting  to  a  warranty.  Though  there  is  no  case  precisely  similar,  the  re- 
sult of  all,  which  are  collected  by  Mr.  Fonblanque,^  is,  that  upon  fraud  or 
mistake,  parol  evidence  is  admissible.  There  are  several  cases  before  Lord 
Thurlow,  in  which  it  is  laid  down  that  a  party  may  alter  a  term  in  the  agree- 
ment, in  the  case  of  fraud :  Lord  Irnham  v.  Child,^  where  it  was  taken  as 
clear,  that,  if  the  clause  had  been  omitted  by  fraud,  a  redemption  would  have 
been  permitted  :  so  in  Lord  Portmore  v.  Morris,''  before  Lord  Kenyon.  In 
Joi/nes  V.  Statham,^  and  Walker  v.  Walker,^  hord  Hardwicke  intimates  an  opi- 
nion that  the  plaintiff  might  have  done  so,  if  the  parties  had  been  reversed.  Rich 
V.  Jackson,^°  was  determined  upon  the  ground  that  it  was  not  a  case  of  fraud. 

1  Stat.  29  Car.  2,  c.  3.  ,     ^  i  Bro.  C.  C.  440. 

'  Free.  Ch.  538.     See  the  references  in  the  notes  by  Mr.  Finch. 
<  3  Atli.  383.  6  1  Fonb.  122.  «  i  Bro.  C.  C.  92. 

^  2  Bro.  C.  C.  219.  8  3  Atk.  388.  «  2  Atk.  98. 

1"  4  Bro.  C.  C.  514;  6  Ves.  334,  in  a  note  to  The  Marquis  of  Townshcnd  v.  Stangroom, 
6  Ves.  328  ;  where  all  these  cases  are  fully  discussed. 


WOOLLAM     V.     HEARN.     '  653 

If  tlie  bill  had  been  filed  against  this  plaintifi",  upon  all  the  authorities  she 
might  have  insisted  upon  this  variation,  for  the  Court  would  not  assist  a  plain- 
tiflF  coming  to  enforce  an  agreement  by  his  own  fraud,  not  according  to  the 
true  contract.  There  can  be  no  principle  why  a  man  may  set  up  a  fraud 
defensively,  which  he  cannot  offensively.  The  defendant  must  go  the  length 
of  saying,  that  no  proof  of  fraud,  however  clearly  it  may  be  made  out,  that  the 
written  argument  was  not  the  actual  agreement,  will  be  adequate.  Certainly 
a  plaintiff  must  make  out  a  stronger  case.  The  consequence  of  refusing  this 
relief  would  be,  that  the  person  who  contrived  the  fraud,  and  who,  if  he  filed 
a  bill,  would  not  be  permitted  to  set  it  up,  may  secure  *the  advantage 
by  refusing  to  perform  the  agreement,  driving  the  other  to  be  the  L  -^ 
actor,  and  to  file  a  bill.  In  many  of  these  cases  the  fraud  has  not  been  clear. 
This  is,  beyond  a  doubt,  misrepresentation  from  first  to  last;  not  only  sup- 
pressio  veri,  but  also  suggestio  falsi.  How  is  it  to  be  distinguished  from  a 
purchase  of  an  estate,  represented  by  the  vendor  at  a  certain  number  of  acres, 
and  turning  out  to  be  less  ?  There  is  a  similar  reference  here  to  the  rent. 
The  defendant's  construction  of  his  words  is  impossible. 

Mr.  Leach,  for  the  defendant. — The  cases  cited  proceed  upon  a  principle 
wide  of  the  Statute  of  Frauds.  The  plaintiff  signed  this  agreement  under  the 
notion  that  the  rent  specified  was  paid  by  the  plaintiff  to  his  landlord.  As- 
sume that  fact.  She  undertook  it  with  full  knowledge.  This  is  not  within 
the  principle  upon  which  the  Court  permits  a  written  agreement  to  be  varied 
by  parol.  The  meaning  of  that  rule  is,  that  the  writing  must  differ  from  the 
intention  of  the  party  when  signing  it.  This  plaintiff  intended,  and  know- 
ing it,  bound  herself  to  pay  73?.  10s.  per  annum.  She  does  not  insist  that 
she  signed  the  agreement  by  mistake,  but  she  contends,  upon  the  suppression 
of  the  fact,  not  merely  that  she  is  to  be  discharged  from  the  written  agree- 
ment, which  might  be  done  if  the  case  was  made  out,  but  beyond  that,  to  set 
up  another  agreement,  existing  only  in  parol.  That  is  the  distinction.  If 
she  meant  only  to  pay  a  rent  of  £63,  and  the  other  by  fraud  inserted  £73, 
the  Court  would  correct  it ;  but  this  is  an  attempt  to  repeal  the  Statute  of 
Frauds.  The  danger  of  admitting  such  evidence  must  be  attended  to;  per- 
sons supporting  their  own  case ;  and  affecting  to  state  the  very  words,  that 
passed.  By  the  alteration  of  a  word  the  witness  alters  the  whole  conversa- 
tion. But,  admitting  the  evidence,  it  by  no  means  supports  their  case.  If 
the  understanding  was,  that  the  plaintiff  was  to  stand  in  the  same  relation  to 
the  original  landlord  as  the  defendant,  how  was  it,  that  she  was  to  pay  £60  as 
a  consideration  for  the  lease  ?  He  meant  nothing  more  than  what  he  states 
in  his  answer,  that  she  should  have  it  upon  terms  *of  equal  advantage. 
The  supposed  fraud  consists  in  this,  that,  having  expended  money,  he    L  * 

must,  therefore,  have  an  increased  rent. 

Mr.  Romilly,  in  reply. — With  respect  to  the  statute,  I  cannot  state  any 
case  exactly  like  this ;  but,  where  a  party  by  a  fraudulent  representation  of 
the  facts  has  obtained  a  contract,  it  has  been  decided  in  many  instances,  that 


654  SPECIFIC     PERFORMANCE. — PAROL     EVIDENCE. 

a  case  of  fraud  is  always  an  exception  out  of  tlie  statute.^  If  the  party  un- 
dertakes to  show,  that  by  fraud  he  was  induced  to  sign  an  agreement  different 
from  the  actual  agreement,  he  may  read  evidence  to  that.  This  extends  to 
cases  of  every  description,  deeds  executed  with  the  most  solemn  forms.  In 
Filmer  v.  Gott,"^  evidence  was  admitted  to  prove  a  consideration  in  the  deed 
different  from  that  stated — a  pecuniary  consideration  :  the  deed  expressing 
natural  love  and  affection.  This  was  followed  by  The  King  v.  The  Inhabi- 
tants of  Scammonden,^  and  various  other  cases.  Lord  Irnham  v.  Child  and 
Portmore  v.  Morris,*^  are  as  strong  cases  as  can  be  produced,  being  not  only  to 
vary  the  written  agreement,  but  to  have  a  specific  performance  of  the  agree- 
ment so  varied.  There  can  be  no  difference  whether  the  party  producing  the 
evidence  is  plaintiff  or  defendant :  the  question  being  as  to  the  rule  of  evi- 
dence, and  a  positive  rule  of  evidence  being  equally  applicable  to  both  cases. 
In  Doe  V.  Alkn^  a  very  strong  case,  upon  a  will,  evidence  was  admitted,  upon 
this  ground,  that  if  you  so  rigidly  adhere  to  the  statute,  it  would  be,  not  a 
statute  for  the  prevention,  but  for  the  protection  and  furtherance  of  fraud. 

In  this  case  the  rent  of  73?.  10s.  was  agreed  on,  only  because  the  defendant 
said  he  paid  that  rent  to  his  landlord.  The  defendant,  the  only  person  who 
knew  the  rent,  refused  to  produce  his  lease.  The  sum  inserted  in  the  agree- 
ment has  reference  to  something,  which  is  substantially  the  agreement.  This 
is  not,  as  represented,  a  party  with  knowledge  consenting  to  pay  this  rent. 
She  never  agreed  to  pay  more  than  he  paid.  Suppose  a  person,  owner  of  the 
fee,  and  likewise  occupier,  contracts  to  sell  the  estate  at  so  many  years'  pur- 
chase, telling  the  party  *with  whom  he  contracts,  that  it  is  £100  a 
L  '^^'^J  year.  Attending  to  the  language  of  the  defendant,  ^^  terms,''  can 
mean  nothing  else  than  the  rent.  The  defendant's  interpretation  is  totally 
impossible. 

Sir  W.  Grant,  M.  R. — The  doubt  I  have  felt  during  the  argument  of  this 
case,  whether  there  is  any  instance  of  executing  a  written  agreement  with  a 
variation  introduced  by  parol,  still  remains;  and;  as  it  is  an  important  ques- 
tion, I  wish  to  consider  it. 

^SiR  W.  Grant,  M.  R. — This  bill  calls  upon  the  Court  for  a  specific  execu- 
tion of  an  agreement  for  a  lease,  at  a  rent  of  £60  a  year.  There  is  no  agree- 
ment in  writing  for  a  lease  at  that  rent ;  the  agreement  expressing  a  rent  of 
73?.  10s.  The  plaintiff  contends,  however,  that  she  signed  that  agreement 
under  a  belief  that  such  was  the  rent  payable  by  the  defendant :  the  real 
agreement  being  for  a  lease  at  the  same  rent  he  paid  to  his  landlord.  The 
defendant  in  his  answer  admits  he  might  have  said,  she  should  have  it  upon 
the  same  terms;  not  meaning  the  same  rent,  but  upon  terms  upon  the  whole 
equally  advantageous;  insisting  that,  as  he  had  laid  out  a  great  deal  of  money, 

1  See  the  references  in  the  note,  3  Vcs.  38,  39,  to  Pym  v.  Blackburn. 

2  4  Bro.  P.  C.  230,  Toml.  edit.  '  3  T.  R.,  B.  R.  474. 
*  2  Bro.  C.  C.  219.  *  8  T.  R.,  B.  R.  147. 
6  June  3,  1802. 


WOOLLAM     V.     HEARN.  655 

she  -would  upon  the  whole  have  as  good  a  bargain.  She  oflFers  parol  evidence 
to  prove  an  express  agreement,  that  she  was  to  have  it  upon  the  same  terms 
as  he  had  it,  and  to  show  that  nothing  could  be  meant  by  that  expression,  but 
the  same  rent,  nothing  being  in  discussion  between  them  but  the  amount  of 
the  rent.  He  alleges  a  particular  reason  for  not  stating  it — that  he  had  not 
his  own  lease  at  hand.  The  question  is,  whether  the  evidence  is  admissible ; 
for,  though  read,  it  has  been  read  without  prejudice.  The  defendant  contro- 
verts the  effect  of  the  evidence,  supposing  it  can  be  received :  but  I  own,  my 
opinion  is,  that,  if  received,  it  will  make  out  the  plaintiff's  case ;  for,  taking 
the  whole  together,  there  is  hardly  a  doubt  that  the  impression  meant  to  be 
conveyed  was,  that  the  rent  should  be  the  same ;  and,  whatever  he  meant, 
that  is  *the  impression  any  person  would  have  received  from  his  Ian-  ^  ,  -,  ^, 
guage.  '-         -* 

By  the  rule  of  law,  independent  of  the  statute,  parol  evidence  cannot  be 
received  to  contradict  a  written  agreement.  To  admit  it  for  the  purpose  of 
proving  that  the  written  instrument  does  not  contain  the  real  agreement,  would 
be  the  same  as  receiving  it  for  every  purpose.  It  was  for  the  purpose  of  shut- 
ting out  that  inquiry,  that  the  rule  of  law  was  adopted.  Though  the  written 
instrument  does  not  contain  the  terms,  it  must  in  contemplation  of  law  be 
taken  to  contain  the  agreement,  as  furnishing  better  evidence  than  any  parol 
can  supply. 

Thus  stands  the  rule  of  law.  But  when  equity  is  called  upon  to  exercise 
its  peculiar  jurisdiction  by  decreeing  a  specific  performance,  the  party  to  be 
charged  is  let  in  to  show,  that,  under  the  circumstances,  the  plaintiff  is  not 
entitled  to  have  the  agreement  specifically  performed ;  and  there  are  many 
cases  in  which  parol  evidence  of  such  circumstances  has  been  admitted,  as  in 
Buxton  V.  Lister,^  which  is  very  like  this  case.  There,  upon  the  face  of  the 
instrument,  a  specific  sum  was  to  be  given  for  the  timber ;  but  it  was  shown 
by  parol,  that  the  defendants  were  induced  to  give  that  upon  the  representa- 
tion that  it  was  valued  by  two  timber  merchants,  which  was  not  true.  So 
here  by  the  agreement  upon  the  face  of  it  she  is  to  pay  this  rent ;  but  by  the 
evidence  she  was  induced  to  do  so,  because  she  thought,  from  his  representa- 
tion, that  it  was  the  rent  he  paid.  If  this  had  been  a  bill  brought  by  this 
defendant  for  a  specific  performance,  I  should  have  been  bound  by  the  deci- 
sions to  admit  the  parol  evidence,  and  to  refuse  a  specific  performance.  But 
this  evidence  is  offered,  not  for  the  purpose  of  resisting,  but  of  obtaining  a 
decree,  first  to  falsify  the  written  agreement,  and  then  to  substitute  in  its  place 
a  parol  agreement,  to  be  executed  by  the  Court.  Thinking,  as  I  do,  that  the 
statute  has  been  already  too  much  broken  in  upon  by  supposed  equitable  ex- 
ceptions, I  shall  not  go  farther  in  receiving  and  giving  effect  to  parol  evidence 
than  I  am  forced  by  precedent.  There  is  no  case  in  which  the  Court  has  gone 
the  length  now  desired.  But  *two  cases  are  produced,  in  which  it  is  _,  ,,,^ 
said  there  is  an  intimation  from  Lord  Hardwicke  to  that  effect.     Upon    L        -J 

1  3  Atk.  383. 


656  SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 

that  it  might  be  sufficient  to  say,  it  was  not  decided.  But  it  is  evident,  from 
the  manner  in  which  that  great  Judge  qualifies  his  own  doubts  that  he  thought 
it  impossible  to  maintain  such  a  proposition  as  the  plaintifi"  is  driven  to  main- 
tain. In  Walker  v.  \S\ilher,^  it  is  to  be  observed,  first,  that  the  parol  evidence 
was  not  offered  for  the  purpose  of  contradicting  anything  in  the  written  agree- 
ment. It  was  admitted,  that,  as  far  as  it  went,  it  stated  the  true  meaning. 
But  it  was  contended  by  the  defendant,  that  there  was  another  collateral  agree- 
ment, which  the  plaintiff  ought  to  execute  before  he  could  have  the  benefit  of 
the  written  agreement.  It  was  evidence,  too,  offered  in  defence,  to  resist  a 
decree.     Lord  Hardwicke,  after  stating  the  ground,  expresses  himself  thus  : — 

''  The  plaintiff,  for  these  reasons,  is  not  entitled  to  relief  in  this  Court,  for 
supplying  the  defect  of  a  legal  conveyance,  but  it  is  rebutted  by  the  equity 
set  up  by  the  defendant.  I  am  not  at  all  clear,  whether,  if  the  defendant  had 
brought  his  cross  bill  to  have  this  agreement  established,  the  Court  would  not 
have  done  it,  upon  considering  this  in  the  light  of  those  cases,  where  one  part 
of  the  agreement  being  performed  by  one  side,  it  is  but  common  justice  it  be 
carried  into  execution  on  the  other;  and  the  defendant  would  have  had  the 
benefit  of  it  as  an  agreement." 

So  he  states  the  special  reason ;  not  being  at  all  clear  that  the  defendant 
would  have  been  so  entitled.  There  is  nothing  of  admitting  parol  evidence 
to  contradict  a  written  agreement,  and  next  to  set  up  a  parol  agreement,  to  be 
executed  by  the  Court. 

The  other  case  referred  to  is  Joynes  v.  Statham,'^  referred  to  for  the  opinion 
expressed  by  Lord  Hardwicke  : — 

"  Suppose  the  defendant  had  been  the  plaintiff,  and  had  brought  the  bill 
for  a  specific  performance  of  the  agreement,  I  do  not  see  but  he  might  have 
been  allowed  the  benefit  of  disclosing  this  to  the  Court." 
r*J.l '?!       *But  the  reason  is  assigned  : 

"  Because  it  was  an  agreement  executory  only ;  and  as  in  leases 
there  are  always  covenants  relating  to  taxes,  the  Master  will  inquire  what  the 
agreement  was  as  to  taxes;  and,  therefore,  the  proof  offered  here  is  not  a 
variation  of  the  agreement,  but  is  explanatory  only  of  what  those  taxes  were. 
I  am  of  opinion  to  allow  the  evidence  of  the  omission  in  the  lease  to  be  read." 

The  parol  evidence  was  received  for  the  purpose  of  resisting  performance  of 
the  agreement,  and  received  likewise,  not  to  contradict  it,  but  to  show,  that, 
as  it  stood,  it  did  not  fully  express  the  meaning  and  intention  of  the  parties, 
there  being  another  stipulation  agreed  upon,  but  not  introduced  into  the 
written  instrument.  And  even  if  that  had  been  a  bill  by  the  defendant,  to 
carry  into  execution  the  agreement,  he  would  not  have  found  it  necessary  to 
offer  parol  evidence  to  contradict  anything  in  it;  for  he  allowed  it  to  contain 
the  intention,  as  far  as  it  went;  but  the  provision,  that  the  rent  was  to  be 
clear  of  taxes,  was  omitted.  And  Lord  Hardwicke,  from  the  particular  nature 
of  that  stipulation,  expresses  a  doubt  whether,  if  the  defendant  had  been 
plaintiff,  he  might  not  have  been  permitted  to  give  evidence,  it  being  usual 

1  2  Atk.  08.  2  3  Atk.  388. 


WOOLLAM     V.     IIEAllN.  657 

to  leave  that  open  ;  intimating  that  it  would  be  merely  explanatory  as  to  the 
taxes. 

But  this  is  evidence  to  vary  an  agreement  in  a  material  part;  and  having 
varied  it,  to  procure  it  to  be  executed  in  another  form.  There  is  nothing  to 
snow  that  ought  to  be  done ;  and  my  opinion  being,  that  it  ought  not,  I  must 
dismiss  the  bill,  but  without  costs. 

The  plaintiff  then  applied  for  a  decree  according  to  the  written  agreement, 
■with  a  covenant  for  quiet  enjoyment^  as  he  had  not  power  to  grant  such  a 
lease. 

The  Master  of  the  Rolls  said,  the  bill  was  not  for  that  purpose ;  ex- 
pressly objecting  to  a  lease  at  the  rent  of  73/.  lO.s. 

*The  bill  was  dismissed  without  costs,  and  without  prejudice  to  r>'.-|-iQT 
another  bill  for  a  lease  at  the  rent  of  73?.  10s.  ^       '  -' 


The  important  distinction  now  so  well  established,  between  a  plaintiff  seek- 
ing, and  a  defendant  resisting  specific  performance,  is  well  laid  down  by  Sir 
William  Grant  in  the  principal  case.  The  plaintiff,  it  will  be  observed,  filed 
the  bill  for  the  specific  performance  of  a  written  agreement,  with  a  variation 
supported  only  by  parol  evidence,  alleging,  that  by  mistake  or  fraud  the  writ- 
ten agreement  without  the  variation  did  not  contain  the  real  agreement; 
the  parol  evidence,  however,  was  very  properly  rejected;  but  his  Honor 
observes,  that,  had  the  bill  been  brought  by  the  defendant  for  a  specific  per- 
formance, he  would  have  been  bound  by  the  decisions  to  have  admitted  the 
parol  evidence,  and  to  have  refused  a  specific  performance. 

Lord  Hardwicke,  in  Joynes  v.  Statham,  3  Atk.  388,  which  is  referred  to 
and  commented  on  in  the  principal  case,  seems  to  have  thought,  that  by  pos- 
sibility, a  plaintiff  might  be  permitted  to  show,  by  parol  evidence,  an  omission, 
either  by  mistake  or  fraud,  in  the  written  agreement.  It  is,  however,  by  no 
means  improbable  that  his  Lordship  has  been  misreported.  Lord  Redesdale, 
in  commenting  upon  this  case,  observes  that  it  is  true  that  Mr.  Atkyus  makes 
Lord  Hardwicke  say,  "  Suppose  the  defendant  had  been  the  plaintiff,  and  had 
brought  the  bill  for  a  specific  performance  of  the  agreement,  I  do  not  see  but 
he  might  have  been  allowed  the  benefit  of  disclosing  this  to  the  Court."  That 
passage  was  cited  for  the  purpose  of  showing  that  Lord  Hardwicke  thought 
there  might  be  an  addition  to  the  agreement  by  parol.  He  had  found  a  refe- 
rence to  a  note  of  the  same  case  by  Mr.  Brown,  who  was  King's  counsel  in 
Lord  Hardwicke's  time,  and  in  great  business;  and  the  manner  in  wliich  he 
had  put  the  case  is  thus  : — "  But  query,  if  on  a  bill  for  performance  of  an 
agreement,  and  an  atteispt  to  add  to  the  agreement  by  parol,  whether  plaintiff 
can  do  it  in  that  case  V  Therefore,  Mr.  Brown  certainly  did  not  understand 
Lord  Hardwicke  as  saying  that  it  could  be  done;  and,  looking  attentively  at 

VOL.  II — 42 


658  SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 


the  words  used  by  Atkyns,  lie  did  not  think  they  imported  anything  positive  : 
Clinan  v.   Cooke,  1  S.  k  L.  38. 

By  the  rule  of  law,  as  observed  by  the  Master  of  the  Rolls  in  the  principal 
case,  independent  of  the  Statute  of  Frauds,  parol  evidence  could  not  be  received 
to  conti-adict  a  written  agreement,  for  to  admit  it  for  the  purpose  of  proving 

-  n  *ttat  the  written  agreement  does  not  contain  the  real  agreement  would 
^  be  the  same  as  receiving  it  for  every  purpose ;  and  it  was  for  the  pur- 

pose of  shutting  out  that  inquiry  that  the  rule  of  law  was  adopted.  Though, 
therefore,  the  written  instrument  docs  not  contain  the  terms,  it  must  in  con- 
templation of  law  be  taken  to  contain  the  agreement,  as  furnishing  better  evi- 
dence than  any  parol  can  supply.  This  rule,  even  before  the  Statute  of  Frauds, 
was  equally  binding  in  equity  upon  a  plaintiff  seeking  specific  performance: 
Farteruhe  Y.  Powlet,  2  Atk.  384;  Tinneij  y.  Tinney,  3  Atk.  8;  Binsted  Y. 
Coleman,  Bunb.  G5 ;  Ilor/g  v.  Snaith,  1  Taunt.  347;  Martin  v.  Fi/n-nft,  2 
De  O.  Mac.  &  G.  795. 

"  The  foundation  of  the  rule,"  observes  Lord  Chief  Baron  Eyre,  "  in  which 
parol  evidence  has  been  holden  to  be  admissible,  is  in  the  general  rules  of  evi- 
dence, in  which  writing  stands  higher  in  the  scale  than  mere  parol  testimony; 
and  when  treaties  are  reduced  into  writing,  such  writing  is  taken  to  express 
the  ultimate  sense  of  the  parties,  and  is  to  speak  for  itself.  Indeed,  nothing 
is  so  familiar  as  this  idea.  At  Nisi  Prius,  when  an  agreement  is  spoken  of, 
the  first  question  always  asked  is,  whether  the  agreement  is  in  writing :  if  so, 
there  is  an  end  of  all  parol  evidence ;  for  when  parties  express  their  meaning 
with  solemnity,  this  is  very  proper  to  be  taken  as  their  final  sense  of  the  agree- 
ment. In  the  case  of  a  contract  respecting  land,  this  general  idea  receives 
weight  from  the  circumstance,  that  you  cannot  contract  at  all  on  that  subject 
but  in  writing;  and  this,  therefore,  is  a  further  reason  for  rejecting  parol  evi- 
dence. In  this  way  onlij  is  the  Statute  of  Frauds  material,  for  the  foundation 
and  bottom  of  the  objection  is  in  the  general  rules  of  evidence.  I  take  this 
rule  to  apply  in  every  case  where  the  question  is,  what  is  the  agreement  ?" 
Davis  v.  St/monds,  1  Cox,  402. 

Accordingly,  it  will  be  found  that  parol  evidence  on  the  part  of  a  plaintiff 
seeking  a  specific  performance  of  a  written  contract,  with  a  variation  supported 
by  such  evidence,  will,  where  there  are  no  acts  of  part  performance,  be  inva- 
riably rejected,  notwithstanding  the  difference  of  the  written,  from  the  real, 
agreement,  was,  as  in  the  principal  case,  the  result  of  fraud,  accident,  or  sur- 
prise. Thus,  a  plaintiff  cannot  adduce  evidence  to  prove  that  lands  comprised 
in  a  written  agreement  were,  by  parol,  agreed  to  be  left  out  of  a  lease,  {Lato- 
son  V.  Laude,  1  Dick.  346;  Fell  v.  Chamberlain,  2  Dick.  484;)  nor  to  prove 
verbal  declarations  at  an  auction,  in  opposition  to  printed  conditions  of  sale. 
Thus,  in  Jenkinson  v.  /V^jys,. cited  1  V.  &  B.  528,  which  was  a  very  hard  case 
r-i^'.'i-ir-i  for  the  vendor,  (who  clearly  intended  that  a  plantation  in  a  *nursery 
should  be  valued  distinctly  from  the  timber  which  the  defendant  was 
to  take  with  the  estate,)  it  was  given  in  evidence,  that,  at  the  auction,  a  dis- 
tinct statement  was  made,  that   there  was  to  be  a  separate  valuation  of  the 


WOOLLAM     V.     HEARN.  659 

nursery,  and  that  the  defendant,  or  his  agent,  was  present,  and  heard  that 
declaration  ;  but  the  opinion  of  the  Court  was  clear,  that  evidence  of  that  de- 
claration for  the  vendor  could  not  be  received,  being  offered  to  supply  a  defect, 
to  alter  in  some  respect  the  written  import  of  the  contract;  S.  C,  stated  15 
Ves.  521.  See  also,  Iligginson^.  Clowes,  15  Ves.  516;  Humphries'^.  Homey 
3  Hare,  276. 

Nor  is  evidence  admissible  to  prove  that  a  written  agreement  to  sell  to  two 
jointly  was  in  reality  an  agreement  to  sell  to  one  of  them,  and  that  the  other 
was  to  have  some  interest  in  the  premises  by  way  of  security  for  such  part  of 
the  purchase-money  as  he  might  advance;  for  that  would  be  to  set  up  a  per- 
fectly distinct  contract;  Davis  v.  Si/monds,  1  Cox,  402;  and  see  Lord  Tuwn- 
shend  v.  Stangroom,  6  Ves.  328;  Clinan  v.  CooJ^e,  1  S.  &  L.  30;  Bcsant  v. 
Richards,  Toml.  509. 

[A  similar  view  was  taken  in  Arnold  v.  Cessna,  1  Casey,  34,  and  evidence 
that  one  of  two  purchasers  had  signed  the  agreement  as  surety  for  the  other, 
held  insufficient  to  exclude  him  from  an  interest  in  the  land.  Payment  of 
the  whole  purchase-money  is,  however,  no  doubt  evidence  that  the  whole  right 
lies  in  the  party  who  makes  the  payment,  whether  the  question  arise  under  a 
deed,  or  under  articles  of  agreement,  ante,  vol.  1,  note  to  Dyer  v.  Dyer."] 

Where,  however,  a  parol  variation  has  been  in  part  'performed,  a  specific 
performance  of  the  written  agreement  with  the  variation  will  be  decreed  : 
Anon.,  5  Vin.  Abr.  522,  tit.  38;  Legale.  Miller,  2  Ves.  299;  Pitcairn  v. 
Oghourne,  2  Ves.  375 ;  ante,  vol.  1,  p.  637. 

The  jurisdiction,  however,  of  a  court  of  equity  to  decree  a  specific  perform- 
ance is  peculiar,  and  discretionary,  since  the  refusal  to  exercise  it  will  not 
preclude  the  plaintifi"  from  seeking  damages  at  law.  Moreover,  before  the 
Statute  of  Frauds,  parol  evidence  was  admissible  as  a  defence  to  a  bill  for  spe- 
cific performance,  and  it  has  not  been  rendered  inadmissible  by  that  statute. 
"  It  should  be  recollected,"  says  Lord  Redesdale,  "  what  are  the  words  of  the 
statute :  *  No  person  shall  be  charged  upon  any  contract,  or  sale  of  lands,  &c., 
unless  the  agreement,  or  some  memorandum  or  note  thereof,  shall  be  in  writing, 
and  signed  by  the  party  to  be  charged  therewith,  or  some  other  person  thereunto 
by  him  lawfully  authorized.'  No  person  shall  be  charged  with  the  execution 
of  an  agreement  who  has  not,  either  by  himself  or  his  agent,  signed  a  written 
agreement;  but  the  statute  does  not  say,  that  if  a  written  agreement  is  signed, 
the  same  exception  shall  not  hold  to  it  that  did  before  the  statute.  Now, 
before  the  statute,  if  a  bill  had  been  brought  for  specific  performance,  and  it 
had  appeared  that  the  agreement  had  been  prepared  contrary  to  the  intent  of 
the  defendant,  he  might  have  said,  'That  is  not  the  agreement  meant  to  have 
been  signed.'  Such  a  case  is  left  as  it  was  by  the  statute  :  it  does  not  say  that 
a  written  agreement  *shaU  bind,  but  that  an  unwritten  agreement  shall 
not  bind :"  Clinan  v.  Cooke,  1  S.  &  L.  39.  And  see  Rann  v.  Hughes,'^  L  -I 
7  T.  R.  350,  n. 

As  a  defence,  however,  to  a  bill  for  a  specific  performance,  parol  evidence  is 
admissible  to  show,  not  only  that  by  fraud,  but  by  mistake,  or  even  surprise, 


660  SPECIFIC     PERFORMANCE. — PAROL     EVIDENCE. 


the  written  agreement  does  not  contain  the  real  terms.  In  the  leading  case 
oi  Joynes  v.  Sfatham,  3  Atk.  388,  a  bill  was  filed  by  a  lessee  for  the  specific 
performance  of  a  written  agreement  for  the  lease  of  a  house  at  the  rent  of  £9 
a  year.  The  defendant,  who  was  a  marksman,  by  his  answer  insisted  that  it 
ou«-ht  to  have  been  inserted  in  the  agreement,  that  the  tenant  should  pay  the 
rent  clear  of  taxes ;  but  the  plaintiff,  having  written  the  agreement  himself, 
had  omitted  to  make  it  clear  of  taxes;  and  that  the  defendant,  unless  this  had 
been  the  agreement,  would  not  have  sunk  the  rent  from  £14  to  £9  ;  and  offered 
to  read  evidence  to  show  that  this  was  part  of  the  agreement.  It  was  insisted 
for  the  plaintiff,  that  the  defendant  ought  not  to  be  admitted  to  add  by  parol 
to  the  written  agreement,  which  was  expressly  guarded  against  by  the  Statute 
of  Frauds.  Lord  Hardwicke,  however,  admitted  the  evidence.  "  I  permitted," 
said  his  Lordship,  "  this  point  be  debated  at  large,  because  it  is  decisive  in 
the  cause ;  for  I  am  very  clear  the  evidence  ought  to  be  read.  This  has  been 
taken  by  way  of  objection  to  the  plaintiff's  bill.  The  constant  practice  of  the 
Court  is,  that  it  is  in  their  discretion,  whether  in  such  a  bill  they  will  decree 
specific  performance,  or  leave  the  plaintiff  to  his  remedy  at  law.  Now,  has 
not  the  defendant  a  right  to  insist,  either  on  account  of  an  omission,  mistahe, 
or  fraud,  that  the  jilaintiff  shall  not  have  a  specific  performance  ?  It  is  a 
very  common  defence  in  this  Court,  and  there  is  no  doubt  but  it  ought  to  be 
received,  and  quite  equally  whether  it  is  insisted  on  as  a  mistaJce,  or  a,  fraud." 
In  Clarice  v.  Grant,  14  Ves.  519,  Sir  W.  Grant,  M.  R.,  admitted  parol 
evidence  of  the  defendant,  in  opposition  to  a  bill  filed  for  specific  performance, 
showing,  that,  at  the  time  he  entered  into  the  written  agreement,  he  made  a 
verbal  stipulation  for  certain  alterations  in  the  agreement,  upon  the  faith  of 
which,  being  consented  to,  he  executed  it. 

In  Winch  v.  Winchester,  1  V.  &  B.  375,  the  defendant  purchased  at  a  sale 
an  estate,  described  in  the  particulars  as  containing,  by  estimation,  forty-one 
acres,  be  the  same  more  or  less ;  whereas  it  turned  out  on  admeasurement  to 
amount  only  to  thirty-five  or  thirty-six  acres.  On  a  bill  being  filed  for  specific 
performance,  the  defendant  stated  by  his  answer,  that,  previous  to  the  sale, 
the  auctioneer  publicly  told  him  that  the  *farm  was  forty-one  acres, 
L  '-'  and  if  it  was  less,  an  abatement  would  be  made  ;  but  he  submitted  to 
perform  the  agreement  with  an  abatement.  Sir  W.  Grant,  M.  K.,  admitted 
evidence  to  prove  the  declaration  of  the  auctioneer,  and  dismissed  the  bill, 
unless  the  plaintifi"  would  make  an  abatement. 

In  Manser  v.  Back,  G  Hare,  443,  premises  were  advertised  to  be  sold  accord- 
ing to  certain  printed  particulars  and  conditions  of  sale.  Before  the  sale  took 
place,  several  of  the  printed  copies  were  altered  by  the  vendor's  solicitor,  who 
introduced  in  writing  a  reservation  of  a  right  of  way  to  other  premises  be- 
lon"-ing  to  the  vendor.  Several  of  the  altered  copies  of  the  particulars  were 
laid  on  the  table  in  the  auction-room,  without  any  remark  with  regard  to  the 
alteration,  and  an  altered  copy  was  delivered  to  the  auctioneer,  who  read  the 
same  aloud  before  the  biddings  commenced ;  but  the  party  who  became  the 
purchaser  did  not  hear  or  notice  the  alteration.     The  contract  was  signed  by 


WOOLLAM     V.     HEARN.  661 

the  auctioneer  inadvertently,  and  by  tlae  purchaser,  on  a  copy  of  the  particulars 
of  sale  not  containing  the  reservation.  After  the  purchase-money  was  paid,  and 
possession  given,  the  purchaser  filed  his  bill  for  a  specific  performance  of  the 
contract,  by  a  conveyance  from  the  vendor,  without  a  reservation  of  the  right 
of  way.  But  Sir  J.  "Wigram,  V.  C,  considering  that  the  evidence  of  the 
vendor  clearly  showed  the  mistake  made  by  the  auctioneer,  dismissed  the  bill ; 
but  his  Honor  said,  that  if  the  vendors  had  been  plaiutifi"s  asking  a  decree  for 
specific  performance,  with  an  addition  to  the  paper  signed  by  the  purchaser, 
such  as  they  said  ought  to  have  been  introduced,  it  was  clear  that  no  such 
decree  could  have  been  made.  The  evidence  to  prove  the  additional  term 
would  have  been  inadmissible. 

The  important  case  of  Lord  ToionsJiend  v.  Stangroom,  6  Ves.  328,  aifords 
a  good  illustration  of  the  distinction  here  discussed.  In  that  case,  the  lessor 
filed  a  bill  for  a  specific  performance  of  a  written  agreement  for  a  lease,  with 
a  variation  as  to  the  quantity  of  land  to  be  included  in  the  lease,  supported  by 
parol  evidence.  The  lessee  also  filed  a  bill  for  specific  performance  of  the 
written  agreement  simply.  Lord  Eldon  dismissed  both  bills ;  the  first,  because 
the  parol  evidence  was  not  admissible  on  behalf  of  the  lessor  seeking  specific 
performance )  the  second,  because  it  was  admissible  when  adduced  by  him  as 
a  defendant,  for  the  purpose  of  showing,  that,  by  mistake  or  surprise,  the  written 
agreem-ent  did  not  contain  the  terms  intended  to  be  introduced  into  it.  See 
Hosier  v.  Rend,  9  Mod.  86.      Vouillon  v.  States,  2  Jur.  N.  S.  845. 

Where  the  terms  of  a  written  agreement  have  been  ambiguous,  *so 
that,  adopting  one  construction,  they  may  reasonably  be  supposed  to  L  J 
have  an  eff'ect  which  the  defendant  did  not  contemplate,  the  Court  has,  upon 
that  ground  only,  refused  to  enforce  the  agreement :  Ccdverlei/  v.  Williams,  1 
Yes.  jun.  201,  n.  48 ;  Jenkinson  v.  Fepys,  15  Ves.  521 ;  1  V.  &  B.  528  ;  6 
Ves.  330 ;  Cloices  v.  Higginson,  1  V.  &  B.  524  ;  Neap  v.  Ahloft,  C.  P.  Coop. 
333,  and  cases  there  collected.  In  the  first  three  cases,  the  plaintiff  was  the 
author  of  the  ambiguity ;  but  in  the  last,  the  vendor,  the  author  of  the  ambi- 
guity had  the  benefit  of  the  principle,  although  it  was  certain  the  purchaser 
supposed  he  was  buying  all  he  claimed ;  6  Hare,  447.  See  also,  Callaghan 
v.  Callaghan,  8  C.  &  F.  374;  Baxendale  v.  Seale,  19  Beav.  601.  And  see 
Watson  V.  Murston,  4  Be  G.  Mac.  &  Gr.  230,  there  a  mortgagee  with  power 
of  sale,  obtained  a  foreclosure  decree,  and  then  entered  into  an  agreement  to 
sell  the  estate,  with  a  clause  providing  that  as  the  vendor  was  mortgagee  with 
power  of  sale,  she  would  only  enter  into  the  usual  covenant  that  she  had  not 
incumbered.  The  purchaser  objected  to  tlie  validity  of  the  foreclosure  decree, 
and  insisted  upon  having  the  conveyance  under  the  power  of  sale;  and  on  the 
vendor  declining  to  convey  in  that  form,  instituted  a  suit  for  specific  perform- 
ance, in  which  the  vendor  adduced  evidence  showing  that  the  clause  was  in- 
serted by  inadvertence,  and  that  the  defendant  never  intended  to  incur  the 
risk  of  opening  the  foreclosure  by  conveying  under  the  power.  It  was  held 
by  the  Lord  Justices  that  the  misapprehension  on  the  part  of  the  defendant 
was  a  sufiicieut  defence  to  the  enforcement  of  a  conveyance  under  the  power. 


662  SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 

"  The  Court/'  said  Lord  Justice  Turner,  "  does  not  refuse  specific  perform- 
ance on  the  arbitrary  discretion  of  the  judge.  It  must  be  satisfied  that  the 
agreement  would  not  have  been  entered  into  if  its  true  efi'ect  had  been  mis- 
understood." 

Sir  Thomas  Plumer,  in  Clowes  v.  Higginson,  1  V.  &  B.  524,  seems  to  have 
been  disposed  to  overrule  the  distinction,  which  the  authorities  have  clearly 
settled  in  favor  of  admitting  evidence  in  defence  against  specific  performance, 
upon  the  grounds  which  have  been  before  mentioned.  He  admits,  indeed, 
that  a  defendant  is  permitted  to  show  fraud,  mistake,  or  surprise,  collateral  to 
and  independent  of  the  ivritten  contract ;  but  he  thought  that  there  was  con- 
siderable difiiculty  in  the  application  of  evidence  under  this  head,  calling  for 
great  caution,  especially  upon  sales  by  auction,  lest,  under  the  idea  of  intro- 
ducing evidence  of  mistake,  the  rule  should  be  relaxed,  by  letting  it  in  to  ex- 
plain, alter,  contradict,  and,  in  eflFect,  get  rid  of,  a  written  agreement;  that,  in 
sales  by  auction,  the  real  object  of  introducing  declarations  by  the  auctioneer, 
r*nQ1  '^^  *other  person,  was  to  explain,  alter,  or  contradict  the  written  con- 
^  "^  -^  tract, — in  efi'ect,  to  substitute  another  contract ;  and  that,  independent 
of  authority,  he  should  be  much  disposed  to  reject  such  declarations,  as  open 
to  all  the  mischief  against  which  the  statute  was  directed,  and  also  violating 
the  rule  of  law  which  prevailed  previously,  whether  offered  by  a  plaintiff"  seek- 
ing a  performance,  or  by  a  defendant,  to  get  rid  of  the  contract :  a  distinction 
which  it  was,  he  thought,  difficult  to  adopt,  where  evidence  was  introduced  to 
show,  that  the  writing  purporting  to  be  the  contract  was  not  the  contract,  and 
that  there  was  no  contract  between  them,  if  that  which  was  proved  by  parol 
did  not  make  a  part  of  it. 

It  is,  however,  clear,  that,  as  a  defence,  parol  evidence  upon  the  ground  of 
fraud,  accident,  surprise,  or  mistake,  is  admissible  not  only  as  collateral  to  and 
independent  of  the  written  agreement,  but  in  contradiction  to  it.  See  Ravis- 
hottom  V.  Gosden,  1  V.  &  B.  165  ;   WincJi  v.  Winchester,  1  V.  &  B.  375. 

In  a  recent  case  a  bill  was  filed  for  specific  performance  of  a  written  agree- 
ment to  grant  a  lease,  but  the  defendant  having  proved  by  evidence  in  writing 
that  by  mistake  the  agreement  did  not  include  a  stipulation  as  to  payment  of 
a  premium,  the  bill  was  dismissed  with  costs  by  Sir  W.  Page  Wood,  V.  C, 
but  without  prejudice  to  an  action  for  damages,  and  to  the  costs  of  the  suit 
being  included  in  such  action.  ^'  That  a  person,"  said  his  Honor,  "  shall  not 
be  compelled  by  this  Court  specifically  to  perform  an  agreement  which  he 
never  intended  to  enter  into,  if  he  has  satisfied  the  Court  that  it  was  not  his 
real  agreement,  is  well  established.  Perhaps,  no  case  better  illustrates  the 
principle  than  The  Marquis  of  Toicnshend  v.  Staiigroom,  (G  Ves.  328,)  which 
shows  that  an  agreement  will  not  be  specifically  performed  by  this  Court  with 
a  parol  variation ;  and  on  the  other  hand,  that  this  Court  will  not  decree  spe- 
cific performance  without  such  variation,  if  it  be  relied  on  as  a  defence." 

Although  it  will  be  a  good  defence  to  a  bill  for  specific  performance  to  show 
that  a  written  agreement  does  not  contain  a  provision  verbally  agreed  upon 
between  the  parties,  nevertheless  if  the  plaintiff'  submits  to  perform  the  omitted 


WOOLLAM     V.      HEAEX.  663 


provision,  and  there  has  been  no  fraud  or  mistake  witli  reference  to  it,  the 
Court  will  make  a  decree  in  favor  of  the  plaintiff.  See  Martin  v.  F^cw/t,  2 
De  (x.  Mac.  &  Gr.  785,  there  the  defendant  agreed  in  writing  to  grant  the 
plaintiff  a  lease  at  a  specified  rent,  and  for  a  specified  term,  subject  to  the  same 
covenants,  clauses,  and  agreements  as  were  contained  in  an  expiring  lease 
under  which  he  then  held  the  property,  and  the  plaintiff  filed  a  *claim  r„: j^qa-i 
for  specific  performance,  stating  the  written  agreement,  and  also  that  ^  ""  J 
it  was  further  agreed  verbally  that  he  should  pay  a  premium  of  £200,  which, 
by  his  claim,  he  offered  to  do.  It  was  held  by  the  Lords  Justices,  reversing 
the  decision  of  Sir  James  Parker,  V.  C,  that  the  additional  verbal  agreement 
did  not  render  the  Statute  of  Frauds  a  valid  defence  to  the  claim.  "  Our 
opinion,"  said  Lord  Justice  Knight  Bruce,  "  is,  that  when  persons  sign  a 
written  agreement  upon  a  subject,  obnoxious,  or  not  obnoxious  to  the  statute 
that  has  been  so  particularly  referred  to,  and  there  has  been  no  circumvention, 
no  fraud,  nor  (in  the  sense  in  which  the  term  '  mistake'  must  be  considered 
as  used  for  the  purpose)  mistake,  the  written  agreement  binds  at  law  and  in 
equity,  according  to  its  terms,  although  verbally  a  provision  was  agreed  to, 
which  has  not  been  inserted  in  the  document ;  subject  to  this,  that  either  of  the 
parties,  sued  in  equity  upon  it,  may  perhaps  be  entitled,  in  general,  to  ask  the 
Court  to  be  neutral,  unless  the  plaintiff  will  consent  to  the  performances  of 
the  omitted  term."     See  also  Leslie  v.  Tompson,  9  Hare,  268. 

In  Croome  v.  Lediard,  2  My.  &  K.  251,  by  a  written  agreement  between 
the  plaintiff  and  the  defendant,  the  plaintiff  agreed  to  sell,  and  the  defendant 
agreed  to  purchase,  a  certain  property  called  the  Leigh  estate ;  and  by  the 
same  agreement  the  defendant  agreed  to  sell,  and  the  plaintiff  agreed  to  pur- 
chase, another  estate  called  the  Haresfield  estate ;  both  estates  were  to  be 
valued  by  the  same  person,  and  both  purchases  were  to  be  completed  on  the 
same  day ;  but  it  was  not  expressed  that  the  two  contracts  were  to  he  dependent 
on  each  other.  Sir  John  Leach  held,  that  the  plaintiff  was  entitled  to  a  spe- 
cific performance  of  the  contract  as  to  the  Leigh  estate,  although  the  defen- 
dant was  unable  to  make  a  good  title  to  the  Haresfield  estate,  and  he  refused 
to  admit  evidence  on  the  part  of  the  defendant,  to  show  that  an  exchange  was 
intended.  "  The  intention  of  the  parties,"  said  his  Honor,  '<■  must  be  col- 
lected from  the  expressions  in  the  written  instrument ;  and  no  evidence  aliunde 
can  be  received  to  give  a  construction  to  the  agreement  contrary  to  the  plain 
import  of  those  expressions."  This  decree  was  affirmed  by  Lord  Brougham, 
on  appeal,  without  hearing  the  respondent's  counsel  in  reply.  '<  It  had  been 
argued,"  said  his  Lordship,  "  that  although  evidence  of  matter  dehors  was  not 
admissible  for  the  purpose  of  raising  an  equity,  it  might  be  given  for  the  pur- 
pose of  rebutting  an  equity,  and  that,  therefore,  it  was  competent  to  the  de- 
fendant in  a  suit  for  specific  performance  to  avail  himself  of  such  evidence 
though  it  was  not  competent  to  the  plaintiff  to  do  so.  The  distinction  was 
*sound  within  certain  limits,  and  within  those  limits  the  rule  might  r,);,.,-,-, 
be  safely  adopted.  Parol  evidence  of  matter  collateral  to  the  agree-  ■-  '  -I 
ment  might  be  received,  but  no  evidence  of  matter  dehors  was  admissible  to 


C6-4  SPECIFIC     PERFORMANCE. — PAROL     EVIDEXCE. 

alter  the  terms  and  substance  of  the  contract ;"  and  after  commenting  on 
Clarke  v.  Grant,  14  Ves.  519,  his  Lordship  added  : — "  lu  tlie  present  case, 
the  purpose  for  which  the  parol  evidence  was  tendered  on  the  part  of  the  de- 
fendant was  not  to  enforce  a  collateral  stipulation,  but  to  show  that  the 
transaction  was  conducted  on  the  basis  of  an  exchange  ;  a  circumstance  which, 
if  true,  was  totally  at  variance  with  the  language  and  plain  import  of  the  in- 
strument. Nothing  could  be  more  dangerous  than  to  admit  such  evidence  ; 
for  if  the  agreement  between  the  parties  was  in  part  conducted  upon  the  basis 
of  an  exchange,  why  was  the  instrument  so  drawn  as  to  suppress  the  real 
nature  of  the  transaction  V 

Lord  St.  Leonards  has  remarked,  that  though  the  decision  in  this  case  was 
probably  well  founded,  it  is  not,  perhaps,  placed  altogether  upon  its  true 
grounds  ;  that  the  evidence  was  inadmissible,  not  because  it  was  not  to  enforce 
a  collateral  stipulation,  but  because  it  did  not  prove  that  hy  fraud,  mistake, 
or  surprise,  the  agreement  did  not  state  the  alleged  real  contract,  viz.  for  an 
exchange  between  the  parties.  The  defendant  was  an  attorney,  and  fraud 
was  not  alleged,  nor  indeed  was  mistake  or  surprise,  for  he  had  himself  pre- 
pared the  agreement ;  and  he  preferred  making  it  a  mutual  contract  for  sale 
and  purchase,  instead  of  an  exchange,  and  of  course  he  could  not  be  permitted 
to  alter  its  character  by  parol  evidence  of  the  mode  in  which  the  negotiation 
was  conducted,  and  of  the  views  of  the  parties,  in  order  to  avoid  the  conse- 
quences which  attached  to  the  nature  of  the  contract  which  the  parties  with 
their  eyes  open,  having  regard  to  other  objects,  had  thought  it  pi'oper  to 
adopt.  Sugd.  V.  &  P.  161,  11th  edit.  The  principle  upon  which,  therefore, 
Croome  v.  Lediard  may  be  safely  put,  seems  to  be  the  same  as  that  upon 
which  Lord  Thurlow  decided  Lord  Irnham  v.  Child,  1  Bro.  C.  C.  92.  8ee 
Lord  Townshend  v.  Stangroom,  6  Ves.  332. 

A  parol  waiver  of  a  written  contract,  amounting  to  a  complete  abandonment, 
and  clearly  proved,  will  bar  a  specific  performance  :  Price  v.  Dyer,  17  Ves. 
35G  ;  Inge  v.  Li^^pinicell,  2  Dick.  469.  And  see  Jordan  v.  Sawkins,  1  Ves. 
jun.  404  ;  Rich  v.  Jaclcsun,  4  Bro.  C.  C.  519  ;  Filmer  v.  Gott,  6  Ves.  337,  n.  ', 
Coles  V.  Trecothich,  9  Ves.  250;  Rohinson  v.  Page,  3  Buss.  119;  and  see 
Legal  v.  Miller,  2  Ves.  299. 

Where  a  written  agreement  is  aftericards  varied  by  parol,  upon  a  bill  being 
r^  \oo-\  fil^'^  f<^i'  specific  performance,  with  or  without  the  ^variation,  the  Court 
will,  it  seems,  put  the  defendant  to  his  election,  and,  if  he  declines  to 
elect,  will  decree  specific  performance  of  the  written  agreement  without  the 
variation :  Rohinson  v.  Page,  3  Buss.  114.  And  see  Price  v.  Dyer,  17  Ves. 
356.  But  it  seems  that  if  an  agreement  is  correctly  put  into  writing,  and  at 
the  same  time  the  parties  add  a  term  by  parol,  evidence  of  it  is  not  admissible 
even  as  a  defence  to  specific  performance  :  Ormerod  v.  ITardman,  5  Ves.  722, 

Although,  however,  parol  variations  of  a  written  agreement  verbally  agreed 
upon,  are  not  sufficient  to  prevent  the  execution  of  the  written  agreement, 
they  clearly  will,  if  the  parol  variations  are  so  acted  upon,  that  the  original 
agreement  could  be  no  longer  enforced  without  injury  to  one  party,  who,  as 


WOOLLAM     V.     HEARN.  665 

before  observed,  will  be  entitled  to  specific  performance,  with  the  parol  varia- 
tions :  Anon.,  5  Vio.  522,  pi.  38 ;  4  Geo.  1 ;  Ler/al  v.  Miller,  2  Ves.  299  ; 
Pitcairn  v.  Oghourne,  2  Ves.  375.  And  see  Price  v.  Dijer,  17  Yes.  356  ; 
Van  V.  Corpe,  3  My.  &  K.  277. 

It  will  depend,  however,  upon  the  particular  circumstances  of  each  case, 
whether  the  evidence,  when  admitted  to  prove  a  variation  in  tlie  contract,  will 
entirely  defeat  the  plaintiff's  title  to  specific  performance,  or  whether  the 
Court  will  perform  the  contract,  taking  care  the  subject-matter  of  the  parol 
agreement  is  also  carried  into  effect,  so  that  all  the  parties  may  have  the  bene- 
fit of  what  they  contracted  for.  Thus,  in  Ram^hottom  v.  Gosden,  1  V.  &  B. 
165,  where,  by  the  mistake  of  the  solicitor,  the  written  agreement  only  re- 
quired the  purchaser  to  bear  the  expense  of  the  conveyance,  whereas  the  real 
agreement  was,  that  he  should  also  bear  the  expense  of  making  out  the  title. 
Sir  W.  Grant,  M.  E..,  admitted  parol  evidence  of  the  mistake,  and  held,  that 
the  plaintiff  must  either  submit  to  have  the  agreement  performed  in  the  way 
contended  for  by  the  defendant,  or  his  bill,  which  was  for  the  specific  per- 
formance of  the  written  agreement,  dismissed.  And  see  The  London  and 
Birmingham  Raihoay  Company  v.  ^Yinter,  1  Cr.  &  Ph.  57,  in  which  suit  a 
parol  variation,  not  set  up  by  answer,  came  out  on  the  cross-examination  of 
the  defendant's  agent,  who  was  one  of  the  plaintiff's  witnesses.  Lord  Cotten- 
ham  seemed  to  think  that  it  might  have  been  a  proper  subject  for  inquiry 
before  the  Court  finally  disposed  of  the  case,  but,  as  the  plaintiff  consented  to 
adopt  it  as  part  of  the  contract,  a  specific  performance  of  the  contract  with  the 
parol  variation,  was  decreed,  with  costs.  In  Lord  William  Gordon  v.  Mar- 
quis of  Hertford,  2  Madd.  122,  where  parol  evidence  was  admitted  as  a  de- 
fence to  specific  performance.  Sir  T.  Plumer,  V.  C,  gavp  the  plaintiff  the 
option,  either  to  have  specific  performance  of  the  *agreement,  as  [-^iqq-i 
proved  by  the  parol  evidence,  or  to  have  an  issue,  in  which  the  person 
giving  the  evidence  might  be  examined,  or  to  have  his  bill  dismissed.  And 
see  Garrard  v.  Grindling,  2  Swanst.  244;  Flood  v.  Finlay,  2  Ball.  &  B.  9; 
Clarke  v.  Grant,  14  Ves.  519. 

Upon  the  principle  that  it  is  in  the  discretion  of  courts  of  equity,  whether 
they  will  decree  specific  performance  or  leave  the  plaintiff  to  his  remedy  at 
law,  unless  he  comes  with  perfect  propriety  of  conduct,  {Harnett  v.  Yielding, 
2  S.  &  L.  554 ;  Cadman  v.  Horner,  18  Ves.  10 ;  Robinson  v.  Wall,  10  Beav. 
61 ;  2  Ph.  372,)  clear  from  all  circumvention  and  deceit,  {Davis  v.  Symonds, 
1  Cox,  407 ;  Rcynell  v.  Sprye,  8  Hare,  222 ;  1  D.  G.  Mac.  &  G.  660,)  and 
the  agreement  be  certain,  fair,  and  just  in  all  its  parts,  (  Underwood  v.  Hithcox, 
1  Ves.  279 ;  Buxton  v.  Lester,  3  Atk.  383,  386 ;  Ellard  v.  Lord  Llandaff, 
1  Ball.  &  B.  241;  Martin  v.  Mitchell,  2  J.  &  W.  413  ;  Stanley  v.  Robinson, 
1  Russ.  &  My.  527,)  specific  performance  will  not  be  decreed.  Thus,  if  a 
definite  representation  be  made,  affecting  the  value  of  the  subject  of  the 
contract,  and  it  turn  out  to  be  untrue,  the  person  deceived,  especially  if  he 
had  no  means  of  ascertaining  the  truth  of  the  representation,  will  be  entitled 
to  resist  the  specific  performance  of  the  contract.     Thus,  in  Lord  Brooke  v. 


G6Q  SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 

Rounthicaite,  5  Hare,  296,  a  vendor  filed  a  bill  for  the  specific  performance  of 
a  contract  to  purchase  a  timber  estate,  where  the  particulars  of  sale  described 
it  as  comprising  a  certain  wood,  "  with  upwards  of  sixty-five  acres  of  fine  oak 
timber  trees,  the  average  size  of  which  approached  fifty  feet,"  and  in  the  par- 
ticulars of  the  lot,  described  it  only  as  sixty-five  acres,  two  roods,  and  twelve 
perches  of  growing  timber,"  it  appeared  on  the  evidence  for  the  plaintifi",  that 
the  average  size  of  the  trees  was  about  thirty-five  feet,  but  on  that  for  the 
defendant,  that  it  was  only  about  twenty-two  feet,  and  the  defendant  more- 
over alleged,  that  it  was  sold  at  a  time  when  he  had  no  means  of  seeing  the 
wood,  and  that  he  relied  on  the  particulars  of  sale ;  it  was  held  by  Sir  J. 
Wigram,  V.  C,  that,  as  the  representation  on  the  particulars  of  sale  had 
proved  to  be  incorrect,  and  as  it  was  not  shown  that  the  defendant  knew  it  to 
be  incorrect  at  the  time  of  making  the  contract,  the  Court  would  not,  at  all 
events,  enforce  the  specific  performance  of  the  contract  without  compensation  ; 
and  that  (inasmuch  as  the  particulars  of  sale  did  not  express  what  number  of 
trees  or  quantity  of  timber  the  wood  contained,)  it  was  not  a  case  in  which 
the  Court  could  measure  the  extent  of  the  deficiency,  or  ascertain  the  amount 
of  compensation ;  and  that  the  bill  must  therefore  be  dismissed.  And  see 
Brealey  v.  Collins,  Younge,  317 ;  Lowndes  v.  Lane,  2  Cox,  363  ',  Stewart  v. 
Alllston,  1  Mer.  2Q',  "^'Harris  v.  Kemhle,  1  Sim.  11;  5  Bligh,  N.  S. 
L  ^-^]  730 ;  2  D.  &  C.  463  ;  Cox  v.  Mlddleton,  2  Drew.  209 ;  Price  v. 
Macaiday,  2  De  G.  Mac.  &  G.  339. 

A  party  obtaining  an  agreement  by  a  partial  misrepresentation,  is  not 
entitled  to  a  specific  performance  on  waiving  the  part  afi"ected  by  the  misre- 
presentation, as  the  eff"ect  of  partial  misrepresentation  is  not  to  alter  or  modify 
the  agreement  pro  tanto,  but  to  destroy  it  entirely,  and  to  operate  as  a  personal 
bar  to  the  person  who  has  practised  it :  Lord  Clermont  v.  Tashurgh,  1  J.  & 
W.  112.  In  Cadman  v.  Horner,  18  Ves.  10,  where  the  purchaser  was  plain- 
tiff", specific  performance  was  resisted  by  the  vendor,  on  the  ground  that  the 
plaintiff",  who  was  his  agent,  had  misrepresented  the  value  of  the  estate,  and 
also  represented  to  him  that  the  houses  had  been  injured  by  a  flood,  and  would 
require  between  £50  and  £60  to  repair  them,  whereas,  in  truth,  the  premises 
at  the  time  of  the  contract  required  no  more  that  40s.  to  put  them  in  complete 
repair.  Sir  W.  Grant,  M.  R.,  although  he  thought  the  evidence  of  the 
inadequacy  of  the  price  considerably  shaken  by  the  defendant's  admission  of 
the  clear  rent  of  the  premises,  dismissed  the  bill,  observing,  that,  upon  the 
evidence,  the  plaintiff"  had  been  guilty  of  a  degree  of  misrepresentation,  ope- 
rating to  a  certain,  though  a  small  extent;  that  misrepresentation  disqualified 
him  from  calling  for  the  aid  of  a  court  of  equity,  where  he  must  come,  as  it  is 
said,  with  clean  hands.  He  must,  to  entitle  himself  to  relief,  be  liable  to  no 
imputation  in  the  transaction.;  that  it  was  not  a  case  where  the  Court  was 
called  upon  to  rescind  an  agreement,  and  to  decree  the  conveyance  executed 
in  pursuance  of  it  to  be  delivered  up  to  be  cancelled,  which  would  admit  a 
different  consideration.     See  1  J.  &  W.  120. 

But  a  mere  indefinite  representation,  such  as  ought  to  put  a  person  upon  in- 


WOOLLAM     V.     HEARN.  667 

quiry,  will  not  be  a  sufficient  ground  for  Lis  resisting  specific  performance  of  a 
contract.  Thus,  a  representation  that  only  a  small  fine  was  payable  upon  the 
renewal  of  leaseholds,  and  that  they  were  of  nearly  equal  value  with  freeholds, 
was  held  not  to  be  a  sufficient  defence  to  a  suit  for  specific  performance,  as  it 
ought  to  have  put  the  purchaser  upon  inquiry,  though,  connected  with  certain 
circumstances,  such  representation  might  have  been  fraudulent,  and  therefore 
a  good  ground  for  rescinding  the  contract :  Fenton  v.  Broione,  14  Ves.  144 ; 
and  see  Loumdcs  v.  Lane,  2  Cox,  363  ;  Scott  y.  Hanson,  1  Sim.  13  ;  1  Russ.  & 
My.  128  ;  Trower  v.  Newcome,  3  Mer.  704 ;  5  Russ.  215 ;  Ahhott  v.  Sworder, 
4  De  G.  &  Sm.  448. 

And  not  only  where  there  has  been  actual  misrepresentation,  but  also  where 
there  has  been  a  suppression  of  the  truth,  specific  *performance  will  r*425"| 
not  be  decreed.  See  Young  v.  Clerk,  Prec.  Ch.  538 ;  Maddeford  v. 
Axistwick,  1  Sim.  89  ;  Bonnett  v.  Sadler,  14  Ves.  526 ;  Dri/sdale  v.  Mace,  2 
Sm.  &  G.  225  ;  5  De  G.  Mac.  &  G.  103,  and  Shirlei/  v.  Stratton,  1  Bro.  C. 
C.  440,  in  which  case,  a  bill  was  filed  for  the  specific  performance  of  an  agree- 
ment for  the  purchase  of  an  estate  in  marsh  land  at  Barking  in  Essex,  and  for 
payment  of  a  sum  of  £1000,  the  purchase-money.  The  defence  was,  that  the 
estate  being  represented  to  the  defendant  as  clearing  a  net  value  of  £90  per 
annum,  and  no  notice  was  taken  to  him  of  the  necessary  repair  of  a  wall  to 
protect  the  estate  from  the  river  Thames,  which  would  be  an  outgoing  of  £50 
per  annum,  and  it  appearing  that  there  had  been  an  industrious  concealment 
of  the  circumstance  of  the  wall  during  the  treaty,  Lord  Thurlow  dismissed 
the  bill. 

Equity  will  not  decree  specific  performance  of  an  agreement  made  by  a  per- 
son in  a  state  of  intoxication,  although  the  plaintifi"  may  neither  have  drawn 
him  in  to  drink  nor  have  taken  advantage  of  his  situation,  (  Cragg  v.  Holme, 
cited  18  Ves.  14 ;)  but  the  Court  might  under  such  circumstances  decree 
specific  performance  as  against  a  second  purchaser  taking  with  notice  of  the 
first  agreement,  {Shaio  v.  Thackray,  1  Sm.  &  G.  537,)  but  where  a  plaintiff 
has  by  contrivance  induced  the  defendant  to  take  too  much  drink,  and  after- 
wards taken  advantage  of  his  condition  by  entering  into  an  agreement  with 
him,  not  only  would  specific  performance  be  refused,  but  the  agreement  would 
be  rescinded,  {Cooke  v.  Claywortli,  18  Ves.  12.)  And  see  Say  v.  Baririck, 
1  V.  &  B.  95 ;  Lightfoot  v.  Heron,  3  Y.  &  C.  Exch.  Ca.  586 ;  Nagle  v. 
Baylor,  3  D.  &  War.  60. 

Although  a  court  of  equity  will  not,  in  the  absence  of  fraud  or  undue 
advantage,  refuse  specific  performance  merely  because  the  price  is  inadequate 
or  the  contract  improvident,  (Sidlivan  v.  Jacob,  1  Moll.  477,)  yet,  as  specific" 
performance  is  discretionary,  it  will  not  enforce  a  contract  where  it  would  sub- 
ject a  person  to  great  hardship,  but  will  leave  the  plaintiff  to  obtain  damages 
at  law,  which  might,  under  the  circumstances,  be  very  small.  Thus,  in 
Wedgetcood  v.  Adams,  6  Beav.  600  ;  8  Beav.  103,  trustees  joined  their  ces- 
tui que  trust  in  a  contract  for  sale,  and  personally  agreed  to  exonerate  the 
estate  from  any  incumbrances  thereon.      There  were    considerable  incum- 


668  SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 

branccs,  and  it  did  not  appear  whether  the  purchase-money  would  be  sufficient 
to  discharpje  them,  or  what  would  be  the  extent  of  the  deficiency.  Lord  Lang- 
dale,  M.  11.,  refused  to  decree  a  specific  performance  against  the  trustees,  so 
as  to  compel  them  to  exonerate  the  estate,  but  left  the  purchaser  to  his  remedy 
r*±9n-\  by  action  for  damages.  "  I  conceive,"  said  *his  Lordship,  "  the  doc- 
trine of  the  Court  to  be  this,  that  the  Court  exercises  a  discretion  n 
cases  of  specific  performance,  and  directs  a  specific  performance,  unless  it 
should  be  what  is  called  highly  unreasonable  to  do  so.  What  is  more  or  less 
reasonable,  is  not  a  thing  that  you  can  define  :  it  must  depend  upon  the  cir- 
cumstances of  each  particular  case.  The  Court,  therefore,  must  always  have 
regard  to  the  circumstance  of  each  case,  and  see  whether  it  is  reasonable  that 
it  should,  by  its  extraordinary  jurisdiction,  interfere  and  order  a  specific  per- 
formance, knowing  at  the  time  that  if  it  abstains  from  so  doing,  a  measure  of 
damages  may  be  found  and  awarded  in  another  Court.  Though  you  cannot'de- 
fine  what  may  be  considered  unreasonable,  by  way  of  general  rule,  you  may  very 
well,  in  a  particular  case,  come  to  a  balance  of  inconvenience,  and  determine 
the  propriety  of  leaving  the  plaintifi"to  his  legal  remedy  by  recovery  of  damages." 
And,  on  a  subsequent  day,  his  Lordship  gave  judgment,  observing — "  After 
consideration,  I  think  I  cannot  order  a  specific  performance  of  the  agreement ; 
and  with  regard  to  its  being  a  mere  money  objection,  I  could  not,  when  this  case 
was  argued,  call  distinctly  to  my  mind  a  case  of  that  sort,  of  which  I  had  some 
recollection,  and  which  came  before  Lord  Hardwicke.  It  is  a  case  not  actually 
reported,  but  is  cited  in  the  argument  in  Eamsden  v.  Helton,  (2  Ves.  307.) 
There  a  person  being  entitled  to  a  small  estate  under  the  will  of  his  father, 
on  condition,  that,  if  he  sold  it  within  twenty-five  years,  half  the  purchase- 
money  should  go  to  his  brother,  sold  it  within  the  time,  and  the  question  was, 
whether  the  agreement  should  be  specifically  performed;  Lord  Hardwicke 
thought  not,  because,  by  the  specific  performance  of  it,  he  would  lose  half  the 
purchase-money.  I  think  that  comes  very  nearly  to  a  case  of  mere  pecuniary 
objection."  And  see  Faine  v.  Brown,  cited  2  Ves.  307  ;  Pope  v.  Harris, 
cited  Lofi"t,  791 ;  Cosiigan  v.  Hastier,  2  S.  &  L.  160  ;  Hoivell  v.  George,  1 
Madd.  1 ;  White's  case,  3  Swanst.  108,  n.  ;  Coote  v.  Coote,  1  Sauss.  &  ScuL 
393  ;  Kimhcrley  v.  Jennings,  6  Sim.  340  ;  Talbot  v.  Ford,  13  Sim.  173 ; 
Ryan  v.  Daniell,  1  Y.  &  C.  C.  C.  60  ;  ^Ychb  v.  The  Direct  London  and  Ports- 
mouth Railwai/  Company,  1  De  Gr.  Mac.  &  Gr.  521 ;  9  Hare,  129  ;  Watson  v. 
Marston,  4  De  G.  Mac.  &  G.  230,  239  :  Browne  v.  Coppinger,  4  Ir.  Ch.  Rep. 
72;  Williamson  v.  Wooton,  3  Drew.  210. 

Nor  will  specific  performance  be  decreed  where  there  is  a  mistake  as  to  what 
'  forms  the  subject-matter  of  the  contract.  See  Harnett  v.  Yielding,  2  S.  &  L. 
549,  554;  Neaj)  v.  Abbott,  C.  P.  Coop.  333,  and  Malins  v.  Freeman,  2  Kee. 
25,  where  a  person  who  had  purchased  an  estate  at  an  auction,  under  a  mis- 
r*4'?71  ^^^^^  ^^  *°  *^^^  ^°^  P"*  ^P'  was  not  compelled  to  complete  his  contract; 
and  in  Coli/er  v.  Clay,  7  Beav.  188,  where,  at  the  time  of  the  sale  of  a 
sura  of  money  as  a  reversionary  interest,  neither  of  the  parties  were  aware  that 


WOOLLAM     V.     HEARN.  669 

it  had  fallen  into  possession  by  the  death  of  the  tenant  for  life^  Lord  Langdale, 
M.  R.,  held,  that,  as  both  of  the  parties  had  entered  into  the  contract  under 
a  common  mistake,  it  would  be  manifestly  unjust  to  enforce  it  as  it  stood. 

Surprise  is  a  ground  upon  which  specific  performance  may  be  refused  :  Willan 
v.WiUa7i,  16  Ves.  72;  19  Ves.  590;  2  Dow,  275;  3Ia<jrave  v.  Archhold,  1 
Dow,  107 ;  BlaJceneij  v.  Baggott,  1  D.  &  C.  405 ;  3  Bligh,  N.  S.  237.  In 
Tioining  v.  Morrice,  2  Bro.  C.  C.  326,  the  vendor's  agent  bid,  and  purchased 
the  property  for  the  plaintiff,  but  specific  performance  was  refused  by  Lord 
Kenyon,  as  the  transaction  was  a  surprise  upon  third  parties ;  for  it  might 
appear  to  the  persons  present  as  a  bidding  for  the  vendor,  and  as  that  might 
damage  the  sale,  it  proved  such  an  impediment  to  specific  performance,  that 
the  party  should  be  left  to  law.  See  6  Ves.  338 ;  10  Ves.  313,  and  Mason  v. 
Armitage,  13  Ves.  25 ;  Hill  v.  Buckley,  17  Ves.  394. 

If  an  agent  contract  to  sell  property  in  a  manner  not  authorized  by  his  prin- 
cipal, the  contract  will  not  be  enforced.  Thus,  in  Daniel  v.  Adams,  Amb. 
495,  where  an  agent  had  authority  to  sell  by  auction,  and  he  sold  by  private 
contract,  although  for  more  than  the  price  required,  it  was  held  that  the  pur- 
chaser could  not  compel  specific  performance.  And  see  Helsliam  v.  Langley, 
1  Y.  &  C.  C.  C.  175 ;  WUte  v.  Cmlclon,  8  C  &  F.  766 ;  Manser  v.  Back,  6 
Hare,  443. 

Nor  will  specific  performance  of  a  contract,  which  would  involve  a  breach 
of  trust,  be  decreed  :  Mortlock  v.  Buller,  10  Ves.  292 ;  Ord  v.  Ahel,  5  Madd. 
438;  Bridger  v.  Rice,  IJ.  &  W.  74 ;  Turner  v.  Harvey,  Jac.  169;  Necde  v. 
Mackenzie,  1  Kee.  474;  Wood  \.  Hichardsoii,  4  Beav.  174;  T homj^son  Y . 
Blackstone,  6  Beav.  470 ;  Bellringer  v.  Blagrave,  1  De  Gr.  &  S.  63 ;  The 
Shrewsbury  and  Birmingham  Railway  Company  v.  The  London  and  North 
Western  Railway  Company,  4  De  Gr.  Mac.  &  G.  115;  Maw  v.  Topham,  19 
Beav.  576;  Law  v.  TJrlwin,  16  Sim.  377. 

Nor  will  courts  of  equity  compel  a  person  specifically  to  perform  an  act 
which  he  is  not  lawfully  authorized  to  do,  otherwise  he  would  be  exposed  to  a 
new  action  of  damages  at  the  suit  of  the  person  injured  by  such  act ;  and, 
therefore,  if  a  bill  is  filed  for  a  specific  performance  of  an  agreement  made  by 
a  man  who  appears  to  have  a  bad  title,  he  is  not  compellable  to  execute  it, 
unless  the  party  seeking  performance  is  willing  to  accept  such  *title  ^^  iqd-i 
as  he  can  give,  and  that  only  in  cases  where  an  injury  would  be  sus-  L  ~  J 
tained  by  the  party  plaintiff,  in  case  he  were  not  to  get  such  an  execution  of 
the  agreement  as  the  defendant  can  give  :  Harnett  v.  Yielding,  1  S.  &  L.  554 ; 
Lawrenson  v.  Butler,  1  S.  &  L.  19 ;  Lllar  v.  Lord  Llandaff,  1  Ball  &  B. 
241 ;  Peacock  v.  Penson,  11  Beav.  355.  So,  where  a  person  having  a  contract 
for  an  underlease,  entered  into  possession  of  the  premises,  and  committed  acts 
which  would  have  been  a  forfeiture  of  the  original  lease,  specific  performance 
of  the  contract  to  grant  the  underlease  was  refused :  Leiois  v.  Bond,  18 
Beav.  85. 

Nor  will  specific  performance  be  decreed  of  a  contract  which  it  is  impossible 


670 


SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 


to  perform,  (^Green  v.  Smith,  1  Atk.  573,)  or  which  the  Court  has  it  not  in 
its  power  to  enforce  :  Waring  \.  Manchester,  Shejjield,  and  Lincolnshire  Rail- 
tcay  Company,  7  Hare,  492. 


The  competency  of  parol  evidence 
in  suits  for  a  specific  performance,  is 
affected  by  considerations  peculiar  to 
the  nature  of  the  right  sought  to  be 
enforced,  and  of  the  remedy  employed 
to  enforce  it.  But  it  is  also  depend- 
ent upon  the  more  general  rules  which 
regulate  the  admission  of  such  evi- 
dence  in  other  cases.  These  rules 
will,  therefore,  be  briefly  examined  in 
the  first  instance. 

Where  no  question  of  fraud  or  mis- 
take is  involved,  the  rule,  with  respect 
to  the  admission  of  parol  evidence  to 
vary  a  written  contract,  is  the  same 
in  courts  of  equity  as  in  those  of  com- 
mon law;  The  Elysville  Co.  v.  The 
Ohisho  Co.,  1  Maryland  Ch.  392 
Knirjht  V.  Bunn,  7  Iredell,  Eq,  77 
Toomer  v.  Lucas,  13  Grattan,  705 
and  while  both  parties  will  be  bound 
by  the  contract  as  it  stands,  neither 
can  add  to  or  take  any  thing  from  its 
terms ;  Stevens  v.  Cooper,  1  Johnson, 
Ch.  425.  The  rule  is  one  of  common 
sense  and  reason  as  well  as  of  law,  and 
is  based  upon  the  well-founded  pre- 
sumption,' that  when  an  agreement  is 
reduced  to  writing  by  the  act  and  con- 
sent of  the  parties,  the  agreement 
should  be  sought  in  the  instrument 
which  they  have  chosen  as  the  reposi- 
tory and  evidence  of  their  purpose, 
and  not  on  one  side  of  it,  in  cx,trinsic 
facts  or  allegations.  This  presump- 
tion may,  however,  be  rebutted  in 
equity,  by  proof  of  fraud  or  mistake 
in  the  preparation  of  the  writing,  by 


which  its  terms  have  been  varied  or 
made  difierent  from  what  they  were  in- 
tended and  believed  to  be,  which  neces- 
sarily shows  that  the  written  contract 
is  not  the  true  one,  and  that  the  mean- 
ing of  the  parties  must  be  sought  else- 
where. And  it  is  equally  well  settled, 
that  this  may  be  done  by  every  species 
of  evidence,  and  by  oral  testimony  in 
default  of  other  proof,  because  it  would 
be  absurd  to  look  for  the  fraud  or  mis- 
take in  the  writing,  and  some  latitude 
is  necessary,  for  the  attainment  of 
the  end  in  view,  and  for  the  detection 
of  fraud,  if  fraud  has  been  committed. 
Even  at  law,  all  that  pertains  to  the 
execution  of  a  written  instrument,  or 
in  other  words,  to  the  proof  that  the  in- 
strument was  deliberately  adopted  or 
ratified  by  the  parties  as  their  act  or 
contract,  is  necessarily  left  to  extrinsic 
evidence,  and  witnesses  may  conse- 
quently be  called  for  the  purpose  of 
impeaching  the  execution  of  a  deed 
or  other  writing  under  seal,  and  show- 
ing that  its  sealing  or  delivery  were 
procured  by  the  fraiidulent  substitu- 
tion of  one  instrument  for  another,  or 
by  any  other  species  of  deceit  or  covin, 
by  which  cither  party  was  misled  and 
induced  to  put  his  hand  to  that  which 
was  substantially  diff"crcnt  from  what 
he  was  justified  in  believing  it  to  be. 
It  was  accordingly  held  as  far  back 
as  Thorou<j]i(jood's  case,  2  Coke,  4, 
that  if  a  deed  be  misread,  or  its  pur- 
port falsely  declared  to  the  grantor  at, 
the  time  when  it  is  executed,  he  may 


WOOLLAM     V.      HEARN. 


671 


plead  the  fraud  specially  in  avoidance 
of  the  execution.  This  decision  has 
been  repeatedly  followed  in  this  coun- 
try as  well  as  in  England ;  Jachson 
V.  Hdijner,  12  Johnson,  469 ;  The 
Farmers  and  Mechanics  Bank  v. 
Whinfield,  24  Wend.  419;  Anthomj 
V.  Wilson,  14  Pick.  303  -,  The  Chesnut 
Hill  Reservoir  Co.  v.  Chase,  14  Conn. 
128. 

The  resolutions  in  Thoroughgood' s 
case,  somewhat  jealously  confine  the 
right  to  avoid  a  deed  for  fraud,  to  the 
single  case  where  the  party  defrauded 
is  unable  to  read  the  deed  himself, 
and  has  been  deceived  by  those  whom 
he  has  requested  to  explain  or  read  it 
to  him,  and  expressly  exclude  cases 
where,  from  negligence  or  reliance  on 
the  good  faith  of  those  with  whom  he 
is  dealing,  he  has  taken  no  steps  to 
ascertain  its  meaning  at  the  time  of 
execution ;  Greenfield' s  Estate,  2  Har- 
ris, 489,  496,  504 ;  Manser's  case,  2 
Coke,  3.  There  can  be  no  doubt  that 
these  resolutions  are  law  at  the  present 
day,  and  that  fraud  cannot  be  pleaded 
in  avoidance  of  a  deed,  consistently 
with  strict  and  technical  legal  princi- 
ple, unless  it  enters  into  and  avoids 
the  execution  by  showing  that  the 
assent  of  the  grantor  was  fraudulently 
obtained,  and  was  never  knowingly 
and  consciously  given  to  the  instru- 
ment, to  which  he  was  induced  to  put 
his  hand ;  Halle}/  v.  Younge,  2.1  Ala- 
bama, 203 ;  Hallenback  v.  De  Witt, 
2  Johnson,  404 ;  Jackson  v.  Cray, 
12  Id.  427.  Modern  liberality  has, 
however,  in  some  instances  inclined 
to  the  idea,  that  a  false  declaration  of 
the  legal  purport  and  effect  of  a  deed, 
will  render  it  voidable,  even  when 
the  party  to  whom  the  statement  is 
made,    has    had    an    opportunity    of 


making  himself  acquainted  with  its 
contents,  by  reading  it  himself  or 
hearing  it  read  by  others ;  Edwards 
V.  Brotvn,  1  Tyrwhit,  182;  Doe  v. 
Bennett,  8  Carr.  &  Payne,  124;  The 
Chesnut  Hill  Reservoir  Co.  v.  Chase; 
although  the  mere  fact  that  a  party 
neglected  to  acquaint  himself  with  the 
contents  of  a  deed  at  the  time,  and  is 
dissatisfied  with  them  afterwards,  i.s 
not  sufficient  to  render  it  void  at  law, 
or  even  to  justify  the  interposition  of 
equity;  Greenfield's  Estate.  How- 
ever this  may  be,  the  weight  of 
authority  is  in  favor  of  the  proposi- 
tion, that  to  avoid  the  execution  of 
sealed  instruments  on  the  ground  of 
fraud,  the  fraud  must  be  cotempora- 
neous  with  their  execution,  and  must 
consist  in  obtaining  the  assent  of  the 
party  defrauded,  by  inducing  a  false 
impression  as  to  their  literal  or  legal 
nature  and  operation.  When  this  is 
shown,  the  execution  is  necessarily 
avoided,  for  it  appears  that  the  assent 
essential  to  every  contract  was  given, 
not  to  the  instrument  actually  sealed 
and  delivered,  but  to  one  of  a  dif- 
ferent nature.  But  under  the  strict 
rules  of  the  common  law,  no  evidence 
of  fraud  will  suffice  to  invalidate  a 
contract  under  seal,  which  does  not 
go  in  effect  to  the  substantial  identity 
of  the  contract.  It  has  been  held, 
therefore,  no  defence  to  an  action  on 
such  a  contract,  to  show  that  it  was 
induced  by  misrepresentations  as  to 
the  nature  or  value  of  the  considera- 
tion ;  ( Vrooman  v.  Pheljjs,  2  Johns. 
177;  Dale  v.  Roosvelf,  9  Cowen,  307 ; 
Dorr  V.  Munscll,  13  Id.  430 ;  Fran- 
chot  V.  Leach,  5  Cowen,  506;  Stevens 
\.  Judson,  4  Wend.  471;  Taylors. 
King,  6  Munford,  358 ;  Wyclie  v. 
Macklin,  2  Randolph,  426;  Burrows 


672  SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 


V.  Alter,  7  Missouri;  Mordecai  v. 
Tanhershj,  1  Ala.  100  ;  Donaldson  v. 
Benton,  4  Dev.  &  Bat.  435 ;  Stryher 
V.  Vanderhilt,  1  Dutclier,  482 ;)  or  by 
assurances  fraudulent  at  tlie  time  or 
in  the  event,  that  its  legal  and  actual 
operation  should  be  modified  in  ac- 
cordance with  some  proviso  or  stipu- 
lation agreed  on  between  the  parties, 
but  omitted  from  the  writing;  Toions- 
hend  v.  Weld,  8  Mass.  .146 ;  Erwin 
V.  Saunders,  1  Cowen,  249;  Hull  v. 
Adams,  1  Hill,  601 ;  Swlck  v.  Sears; 
Reed  v.  Moore,  3  Iredell,  310 ; 
Mead  v.  Steger,  5  Porter,  498  ;  Ro- 
gers V.  Colt,  1  Zabriskie,  18  ;  Eahes 
V.  Hotchkiss,  23  Vermont,  231;  Carter 
V.  Hamilton,  11  Barbour,  147;  Ridg- 
way  V.  Bowman,  7  Gushing,  268  ;  1 
Smith,  Lead.  Cases,  505, 5th  Am.  ed. ; 
Gant  V.  Hunsuclcer,  12  Iredell,  254. 

The  courts  of  Massachusetts  have, 
notwithstanding,  so  far  departed  from 
this  doctrine  as  to  hold,  that  actual 
fraud  is  as  much  a  matter  of  legal  as 
of  equitable  cognizance,  and  that  a 
material  misrepresentation  as  to  any 
matter,  which  forms  the  consideration 
of  a  bond  or  other  sealed  instrument, 
will  avoid  the  instrument ;  Bliss  v. 
Thompson,  4  Mass.  488 ;  Boynton  v. 
Iluhhard,  7  Id.  119  ;  Somes  v.  Skin- 
ner, 16  Id.  348  ;  Hazard  v.  Incin, 
18  Pick.  95.  But  they  hold  with 
great  strictness  to  the  rule,  that  all 
evidence  is  inadmissible  which  tends 
to  contradict  or  vary  the  instrument 
itself;  Locke  v.  Whiting,  10  Pick.  279 ; 
BarJcer  v.  Bud,  5  Gushing,  510. 

It  is  well  settled,  that  fraud  in  pro- 
curing the  execution  of  a  contract  in 
writing  and  not  under  seal,  although 
consisting  in  misrepresentations  as  to 
the  consideration  or  other  material 
circumstances,  and  not  attaching  di- 


rectly to  the  execution  itself,  is  ad- 
missible at  common  law  in  avoidance 
of  the  contract.  But  it  is  generally 
held,  that  such  contracts  stand  on  the 
same  footing  in  other  respects,  as  it 
regards  parol  evidence,  with  sealed 
contracts,  and  cannot  be  avoided  by 
showing  that  they  were  executed  on 
the  faith  of  assurances  that  they 
should  be  construed,  as  if  some  par- 
ticular clause  or  provision  had  been 
omitted,  or  had  not  been  inserted,  or 
that  their  actual  should  be  different 
from  their  legal  operation.  Whether 
clear  evidence  that  such  assurances 
were  made  fraudulently,  with  the  de- 
sign of  misleading  the  opposite  party, 
and  taking  advantage  of  an  act  in- 
duced by  deceit,  is  admissible  at 
law,  may  perhaps  be  doubtful.  But 
in  most  cases  in  which  an  instrument 
is  executed  on  the  faith  of  assurances 
which  are  subsequently  violated,  the 
evidence  shows  a  fraudulent  use  of 
the  instrument,  rather  than  fraud  in 
obtaining  it.  And  it  is  evident  that 
a  contract  cannot  be  avoided  at  com- 
mon law  for  fraud  subsequent  to  its 
execution,  whatever  may  be  the  rule 
in  equity,  or  under  the  doctrine  of" 
equitable  estoppel;  Paysant  v.  Ware, 
1  Alabama,  160;  Smithy.  Williams, 
1  Murphy,  426.  The  same  remark 
holds  good  in  all  cases  of  mistake, 
without  fraud  at  the  time,  although 
followed  by  a  fraudulent  attempt  to 
take  advautake  of  the  mistake  subse- 
quently ;  Fit:Jliugh  v.  Runyan,  8  John- 
son, 375 ;  Coleman  v.  Crumpler,  2 
Devereux,  508;  Loclce  v.  Whiting, 
10  Pick.  279;  Young  v.  Jacowaiy, 
9  Smedes  &  Marshall,  212;  except, 
perhaps,  where  the  mistake  goes  to 
the  foundation  of  the  contract,  and 
is  such  as  to  show  that  the  minds 


WOOLLAM     V.     HEARN, 


673 


of  the  parties  never  met,  or  ap-reed 
upon  a  common  purpose  or  object; 
Ketchum  v.  Catlin,  21  Vermont,  191. 
And  the  tenor  of  all  the  resolutions 
in  Thoroughgood's  case  implies,  that 
a  misapprehension  as  to  the  wording 
or  effect  of  a  deed,  is  no  ground  for 
relief  at  common  law,  unless  it  arise 
without  the  default  or  neglect  of  the 
party  who  seeks  to  avoid  the  instru- 
ment. Apart,  moreover,  from  the 
difficulty  of  bringing  fraud  or  mistake, 
in  the  execution  of  instruments  under 
seal  or  merely  written,  within  the  cog- 
nizance of  the  courts  of  common  law, 
the  relief  afforded  in  those  courts  is 
necessarily  confined,  to  giving  the  in- 
jured party  the  option  of  affirming 
the  contract  or  avoiding  it  altogether, 
and  cannot  extend  to  reforming  a 
written  instrument,  so  as  to  make  it 
correspond  to  the  actual  understand- 
ing between  the  parties,  and  then  en- 
forcing it  as  thus  reformed ',  Bellows 
V.  Stone,  14  N.  H.  175  ;  Neale  v. 
Hague,  8  Alabama,  345 ;  Barrett  v. 
The  Union  31.  F.  Ins.  Co.,  7  Gushing, 
175.  As  redress  at  law  is  thus  im- 
perfect in  itself,  and  confined  to  those 
cases  in  which  the  fraud  is  contem- 
poraneous with  the  original  contract 
between  the  parties,  and  does  not  ex- 
tend to  those  in  which  it  consists  in  a 
subsequent  attempt  to  take  advantage 
of  the  accidental  omission  of  material 
stipulations ;  to  obtain  any  relief  in 
the  latter  case,  or  complete  relief  in 
either,  it  is  necessary  to  go  into  equi- 
ty. It  is,  therefore,  material,  to  con- 
sider on  what  grounds  equity  will  af- 
ford it. 

It  has  already  been  stated,  that  in 
the  absence  of  fraud  or  mistake,  parol 
evidence  is  as  inadmissible  to  vary  a 
written  contract  in  equity  as  at  law; 

VOL.  II. — 43 


Parkhurst  v.  Van  Cortland,  1  John- 
son, Ch.  273,  282  ;  Westhrook  v.  Ilar- 
leson,  2  M'Cord,  Ch.  112;  ante. 
And  the  weight  of  authority  is  in 
favor  of  the  position,  that  in  both 
jurisdictions,  the  evidence  must  be 
such  as  to  show  that  the  contract  as 
executed,  differs  from  that  which  one 
or  both  of  the  parties  intended  to  exe- 
cute, and  not  merely  that  there  were 
terms  or  provisions  not  embodied  in 
the  writing,  even  when  they  were 
omitted,  on  the  faith  of  an  express 
understanding,  that  it  should  take  ef- 
fect in  the  same  manner  as  if  they 
had  been  actually  inserted.  This  is 
strikingly  illustrated  by  the  case  of 
Lord  Irnham  v.  Child,  1  Bi'own,  Ch. 
Cases,  92.  An  annuity  had  been 
granted,  subject  to  a  stipulation  that 
it  should  be  redeemable,  which  was 
omitted  from  the  deed  by  the  mutual 
wish  of  the  parties,  but  with  an  ex- 
press understanding  that  it  should  be 
as  binding  on  both  as  if  it  had  been 
inserted,  and  a  bill  having  been  filed 
to  carry  this  stipulation  into  effect ; 
Lord  Thurlow  decided,  that  as  the 
omission  was  not  the  result  of  fraud 
or  mistake,  it  could  not  be  supplied 
by  parol  evidence  ;  and  he  expressed 
the  opinion,  that  as  the  parties  had 
chosen  to  trust  to  an  honorary  en- 
gagement, the  rules  of  law  ought  not 
to  be  violated,  even  for  the  purpose 
of  preventing  a  breach  of  trust.  The 
doctrine  thus  held,  was  followed  in 
Portmore  v.  Morris,  2  Brown,  C.  C. 
Cases,  219,  and  recognized  or  applied 
by  Lord  Eldon,  in  the  case  of  The 
3Iarquis  of  Toionshend  v.  Stangroom, 
6  Vesey,  328 ;  by  Sir  John  Leach,  in 
Croome  v.  Lediard,  ante,  663 ;  and 
by  Lord  Cottenham,  in  The  London 
Railway   Co.  v.   Winter,  1  Craig  & 


674 


SPECIFIC     PERFORMANCE. — PAROL     EV'IDENCE. 


Phillips,  57.  It  in  also  sustained  by 
many  of  the  decisions  and  dicta  in 
this  country ;  Clietwood  v.  Brittan, 
1  Green,  Ch.  438  ;  Chauncey\.  CrutcJi- 
field,  2  Iredell,  Eq.  148 ;  EicJiardson 
V.  Thompson,  1  Humphreys,  151 ; 
WesthrooJc  v.  ITarheson,  1  M'Cord, 
Ch.  112;  Dwight  v.  Pomroy,  17 
Mass.  303 ;  Roheson  v.  Harwell,  6 
G-eorgia,  589;  ParJchurst  v.  Van 
Cortland,  1  Johnson,  273,  282; 
Movan  v.  Hays,  lb.  339,  343 ;  Stevens 
V.  Cooper,  lb.  425,  429;  Kin(/  v. 
Baldioin,  2  Johnson,  Ch.  74  ;  Wilkin- 
son V.  Wilkinson,  2  Dev.  Eq.  376 ; 
Ratcliffe  V.  Alison,  3  Randolph,  537 ; 
3I'3Iahon  v.  Spangler,  4  Id.  51 ; 
Jarvis  v.  Palmer,  11  Paige,  650; 
Jarrett  v.  Johnson,  11  Grattan,  327  ; 
Jordan  v.  Fenno,  8  English,  593  ; 
Towner  v.  Lucas,  13  Grattan,  705; 
TFiYso^i  V.  Tr««s,  9  Maryland,  356.  In 
the  recent  case  of  Thomas  v.  M'Cor- 
mack,  9  Dana,  108,  the  court  held 
that  the  remedy  afforded  by  courts  of 
equity,  should  be  limited  to  giving 
the  complainant  an  opportunity  of 
proving  that  material  stipulations  have 
been  omitted  or  added  by  fraud  or 
mistake,  and  to  compelling  the  de- 
fendant to  discover  upon  oath,  the  real 
nature  of  the  contract.  And  it  was 
decided,  that  where  neither  fraud  nor 
mistake  is  proved,  and  the  answer 
denies  that  the  real  contract  differs 
from  that  reduced  to  writing,  parol 
evidence  is  inadmissible  to  contradict 
this  denial,  and  show  that  material 
stipulations  were  omitted  from  negli- 
gence, or  in  reliance  upon  the  honor 
and  good  faith  of  the  other  party.  It 
was  accordingly  determined  that  a 
deed  absolute  on  its  face,  could  not  be 
converted  into  a  mortgage,  by  parol 
evidence  of  a  verbal  agreement,  that 


it  should  be  taken  as  a  mere  security, 
and  be  defeasible  upon  the  repayment 
of  the  consideration.  The  court  held 
the  following  language  in  delivering 
their  opinion  : 

"The  only  question  to  be  consi- 
dered in  this  case,  is  whether  a  con- 
veyance of  a  lot  in  the  city  of  Louis- 
ville by  M'Cormack  to  Thomas,  abso- 
lute upon  its  face,  shall,  on  the  facts 
on  the  record,  be  deemed  nevertheless 
a  mortgage,  as  alleged  in  the  bill,  and 
peremptorily  denied  in  the  answer. 

"  There  being  no  written  memorial 
of  any  condition  or  defeasance,  neither 
the  public  interest  nor  the  established 
principles  of  equitable  jui-isprudence 
will  allow  a  court  of  either  equity  or 
law  to  admit  parol  testimony,  in  op- 
position to  the  legal  import  of  the 
deed  and  the  positive  denial  in  the 
answer,  unless  a  foundation  for  such 
evidence  had  been  first  laid  by  an  al- 
legation and  some  proof  of  fraud  or 
mistake  in  the  execution  of  the  con- 
veyance, or  of  some  vice  in  the  consi- 
deration. 

"This  rule,  though  it  may  operate 
harshly  in  a  particular  case,  is,  never- 
theless, so  salutary  and  conservative, 
that  an  inflexible  adherence  to  it  is 
necessary  for  effectuating  the  policy 
of  the  Statute  of  Frauds  and  Perjuries, 
and  of  giving  proper  security  to  pro- 
perty, and  full  effect  to  solemn  con- 
tracts in  writing. 

"  In  this  case,  there  is  neither  alle- 
gation nor  proof  of  cither  fraud  or 
mistake  in  the  execution  of  the  con- 
veyance, nor  is  there  any  suggestion 
of  an  illegal  or  immoral  consideration. 
On  the  contrary,  there  can  be  no  doubt 
that  M'Cormack  understood  and  in- 
tended that  the  conveyance  should  be 
absolute  on  its  face,  when  he  signed 


WOOLLAM     V.     HEARN. 


675 


it ;  that  Thomas  was  guilty  of  no  fraud 
in  procuring  such  a  conveyance,  and 
that  the  consideration  for  it  was  valu- 
able and  legal. 

"  And  consequently,  had  the  parol 
testimony,  which  is  nearly  equipon- 
derant, conduced  ever  so  strongly  to 
the  deduction  that  the  conveyance 
was,  in  fact,  intended  as  a  trust  for 
the  benefit  of  M'Cormack,  or  as  a  col- 
lateral security  to  Thomas  for  a  debt 
due  to  him  from  M'Cormack,  still  this 
court  could  not  give  effect  to  such  tes- 
timony, or  even  judicially  consider  it, 
without  establishing  a  precedent  which 
might  operate  as  a  mischievous  re- 
laxation of  wholesome  rules  of  law; 
open  a  wide  door  to  perjury,  and 
greatly  impair,  if  not  altogether  de- 
stroy, the  efficacy  and  value  of  written 
memorials  of  contracts. 

"  The  chancellor,  however,  whilst 
seeming  to  recognize  the  authority 
and  value  of  this  principle,  decided 
that  the  deed  was  intended  as  a  mort- 
gage. 

"  He  appeared  to  think  that  the 
parol  testimony  preponderated  decid- 
edly in  favor  of  that  conclusion;  and 
that  such  testimony  was  admissible 
on  the  ground  that  Thomas's  answer 
did  not  insist  on  the  deed  in  all  re- 
spects, according  to  its  apparent  im- 
port and  effect,  but  described  a  verbal 
contract  essentially  different.  But, 
for  this  important  assumption,  there 
is  not,  as  we  think,  any  sufficient 
foundation. 

"  Had  Thomas  admitted  that  the 
contract  was  intended  to  be  condi- 
tional, or  in  tnist,  to  any  extent  or  for 
any  purpose,  we  admit  that  then  the 
complainant  might  have  proved,  by 
parol  testimony,  the  true  condition  or 
trust;  because  the  admission  that  the 


deed  did  not  describe  the  actual  con- 
tract between  the  parties,  would  have 
waived  the  estoppel  arising  from  its 
apparent  import,  and  have  presented 
for  litigation  a  question  depending 
altogether  and  necessarily  on  extrane- 
ous evidence.  But  there  is  no  such 
admission  or  waiver  in  the  answer, 
which  avers  that  no  trust  or  condition 
was  contemplated,  but  that  the  con- 
veyance was  intended  to  operate  as 
an  absolute  sale,  without  reservation 
or  ademption. 

*'  The  fact  that  the  deed  recited  a 
consideration  of  six  hundred  dollars, 
and  acknowledged  the  payment  of  it, 
and  that  nevertheless  the  answer  stated 
a  larger  consideration,  and  admitted 
that  the  whole  of  it  had  not  been  paid 
until  some  time  after  the  date  of  the 
deed,  is  not,  in  our  judgment,  entitled 
as  the  chancellor  appeared  to  think  it 
was,  to  the  effect  of  authorizing  parol 
testimony  contradicting  both  the  deed 
and  the  answer,  as  to  the  important 
question  whether  the  contract  was  a 
sale  or  only  a  mortgage,  and  as  to 
which  there  is  no  discrepancy  between 
them.  A  recital  in  a  conveyance  is 
not  conclusive  evidence  as  to  the  ques- 
tion whether  the  consideration  had 
been  paid  or  only  agreed  to  be  paid ; 
nor  can  the  circumstance  that  a  deed 
recites  a  consideration  either  larger  or 
smaller  than  that  which  was  actually 
given,  alter  the  character  or  impair 
the  conclusive  effects  of  the  instru- 
ment as  a  document  of  title.  Any 
other  doctrine  would  tend  to  destroy 
the  value  of  written  evidences  of  title. 
"  Was  the  contract,  as  verbally 
made  and  secretly  understood  be- 
tween the  parties,  intended  to  be  a 
sale,  or  only  a  mortgage  ?  The  deed 
prescribed  by  the  parties  themselves, 


676 


SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 


as  the  highest  evidence  of  their  in- 
tentions, clearly  imports  that  they 
intended  an  absolute  sale.  The  an- 
swer insists  that  such,  and  such  pre- 
cisely, was  the  only  contract.  Can 
parol  testimony  be  admissible  to  con- 
tradict the  deed  and  answer  in  this 
respect,  merely  because  the  deed  re- 
cites, as  is  usually  done  for  conformity 
only,  the  payment  of  the  considera- 
tion, when  the  answer  admits  that  it 
had  not  all  been  paid,  but  only  agreed 
to  be  paid,  or  because  the  deed  states 
a  consideration  of  six  hundred  dollars, 
and  the  answer  says  that  it  was  more, 
perhaps  nine  hundred  dollars  ?  Surely 
not.  Such  a  suicidal  doctrine  is  un- 
sanctioned, so  far  as  we  know  or  be- 
lieve, by  the  authority  of  any  reported 
case  or  admitted  principle. 

^'  The  circumstances  to  which  we 
have  just  alluded,  might  be  admissi- 
ble for  corroborating,  as  they  might 
do  in  some  degree,  evidence  of  fraud 
or  mistake  or  illegality  of  considera- 
tion, but  should  alone  never  be  deemed 
sufficient  as  a  foundation  for  the  intro- 
duction of  witnesses  to  testify  merely 
that  an  absolute  conveyance,  executed 
fairly,  legally  and  understandingly, 
was  intended  between  the  parties  as  a 
mortgage. 

"  We  are  therefore  of  the  opinion 
that,  there  is  no  sufficient  ground  in 
this  case,  for  converting  the  absolute 
conveyance  into  a  mortgage." 

The  soundness  of  the  principles 
thus  laid  down  as  general  principles, 
is  unquestionable ;  and  they  arc  not, 
when  properly  understood,  at  vari- 
ance with  the  cases  which  establish 
that  a  deed  absolute  on  its  face, 
may  be  shown  to  be  a  mortgage  by 
parol  evidence;  Joynes  v.  Statham,  3 
Atkyns,    387;    Strong   v.    Steioart, 


4  Johnson,  Ch.  167;  She  v.  The 
Ilanhnttan  Co.,  1  Paige,  418 ;  Van 
Buren  v.  Olmsted,  5  Id.,  10;  Roach 
v.  Cosine,  9  Wend.  227 ;  KunkJe  v. 
Wolfersberger,  6  Watts,  126 ;  Hud- 
son V.  Ishel,  5  Stewart  &  Porter,  67 ; 
Deshazo  v.  Lewis,  lb.  91 ;  English 
V.  Lane,  1  Porter,  328 ;  Johnson's 
Ex' or  V.  Clarke,  5  Arkansas,  321 ; 
Yarhrough  v.  Neioell,  10  Yerger, 
376  ;  Lane  v.  Dicherson,  lb.  373 ; 
Strcator  v.  Jones,  3.  Hawks,  423 ; 
McDonald  v.  31'Leod,  1  Iredell, 
Equity,  221;  Tai,'lor  v.  Liifhcr,  2 
Sumner,  228 ;  Randall  v.  Phillijts, 
3  Mason,  378  ;  Wright  v.  Bates,  13 
Vermont,  341 ;  Morris  v.  Nixon,  1 
Howard,  118;  post,  note  to  Howard 
V.  Harris.  In  some  of  these  cases, 
the  evidence  indicated  a  fraudulent 
design  to  obtain  possession  of  the  in- 
strument for  one  purpose,  and  then 
use  it  for  another.  And  the  language 
held  in  FranMin  v.  Roberts,  2  Ire- 
dell, Eq.  560;  Kelly  v.  Bryan,  6  Id. 
283  ;  Bright  v.  Wagle,  3  Dana,  238  ; 
Thomjison  V.  Patton,  5  Littcll,  74 ; 
tends  to  support  the  idea,  that  a  parol 
defeasance  of  an  absolute  deed  can 
only  be  sustained  on  the  ground  of 
fraud,  or  of  such  undue  advantage  and 
oppression  as  is  tantamount  to  fraud. 
But  the  general  current  of  authority 
goes  fully  to  the  point,  that  whenever 
the  ti'ansaction  is  shown  to  have  been 
meant  as  a  security  for  a  loan,  the 
deed  will  have  the  character  of  a 
mortgage,  without  other  proof  of  fraud 
than  is  necessarily  implied  in  proving, 
that  a  conveyance  taken  for  the  mu- 
tual benefit  of  both  parties,  has  been 
appropriated  solely  to  the  use  of  the 
grantee. 

This  course  of  decision   seems  to 
have  been  induced  by  the  policy  of 


-WOOLLAM     V.     HEARN. 


677 


equity  to  prevent  oppression,  as  be- 
tween debtor  and  creditor,  wbicli  dic- 
tated the  maxim,  once  a  mortgage 
always  a  mortgage,  and  led  to  the 
rule,  that  no  restraint  on  the  right  of 
redemption  shall  be  tolerated,  in  con- 
travention of  the  general  principle, 
that  the  rules  of  law  may  be  controlled 
by  special  agreements,  and  that  every 
man  may  waive  a  right  introduced  for 
his  own  benefit ;  Ring  v.  Franklin,  2 
Hall,  1 ;  Richardson  v.  Tlwmpson,  1 
Humphreys,  151.  So  far,  therefore, 
as  the  decisions,  which  allow  a  defea- 
sance to  be  engrafted  on  a  written 
contract  by  parol  evidence  are  excep- 
tional, they  cannot  be  considered  as 
in  conflict  with  general  principles. 
Moreover,  the  better  view  seems  to 
be,  that  an  absolute  conveyance  can 
only  be  shown  to  be  a  mortgage  by 
proving  that  it  was  obtained  or  is 
vitiated  by  fraud,  mistake,  or  undue 
influence,  or  that  the  consideration  on 
which  it  depends  is  a  loan,  and  the 
whole  transaction,  consequently,  de- 
feasible ;  and  if  so,  the  whole  doctrine 
may  be  referred  to  the  law  of  implied 
and  resulting  trusts. 

It  cannot,  however,  be  denied  that 
there  are  many  cases  in  this  country 
which  cannot  be  reconciled  with  the 
rule  of  evidence  laid  down  in  Lord 
Irnham  v.  Child,  and  Thomas  v. 
JSi'Cormach.  Thus  in  Keisselhrach 
Livingston,  4  Johnson,  Ch.  141,  it 
was  decided  that  a  written  agreement 
for  a  lease,  containing  "such  provisos 
and  reservations  as  were  usually  con- 
tained" in  the  leases  executed  by  the 
defendant,  might  be  varied  by  parol 
evidence  of  a  verbal  stipulation,  that 
a  usual  proviso  should  not  be  intro- 
duced into  the  lease  in  question,  al- 
though there  was   nothing   to   show 


that  the  omission  of  this  stipulation, 
was  the  result  either  of  fraud  or  acci- 
dent. The  chancellor  said,  in  deliver- 
ing his  opinion,  that  the  agreement 
had  been  drawn  and  executed  in 
mistake,  but  mistake  in  the  proper 
sense  of  the  term,  was  not,  as  it  would 
seem,  either  charged  in  the  bill  or  es- 
tablished by  the  complainant's  evi- 
dence, and  the  true  explanation  of 
the  case  would  seem  to  be,  that  the 
contract  was  so  worded  as  to  render 
parol  evidence  necessary  to  show  what 
was  usual,  and  thus  entitled  the  de- 
fendant to  introduce  evidence  of  the 
same  nature  in  rebuttal. 

The  courts  of  Pennsylvania  have 
gone  further  in  this  course  of  deci- 
sion, than  those  of  any  other  part  of 
the  Union.  It  is  well  settled  in  that 
state,  that  verbal  stipulations  by  one 
party  to  a  written  agreement,  on  the 
faith  of  which  it  is  executed  by  the 
other,  will  control  the  writing,  even 
when  there  is  no  evidence  that  thej' 
were  made  with  a  fraudulent  design  ; 
Christ  V.  Diffenlach,  1  S.  &  R.  464; 
3Iiller  V.  Henderson,  10  Id.  290; 
Hultz  V.  Wright,  16  Id.  345 ;  Clark 
V.  Partridge,  2  Barr,  13 ;  Partridge 
V.  Clark,  4  Id.  166.  These  decisions 
overrule  the  doctrine  of  Lord  Irnham 
V.  Child,  and  proceed  on  the  ground, 
that  where  an  agreement  has  been 
entered  into  with  an  understanding 
that  it  shall  only  be  used  for  certain 
purposes,  or  with  certain  qualifications, 
that  understanding  cannot  be  violated 
without  a  breach  of  good  faith,  which 
equity  will  not  tolerate,  and  will  in- 
terfere to  prevent;  Camphcll  v. 
M'Clenachan,  6  S.  &  R.  171;  Jliller 
V.  Henderson,  10  Id.  290  ;  Li/on  v. 

The  Huntingdon  Bank,  14  Id.  2S3  ; 

Oliver  V.  Bell,  4  Eawle,  141 ;  Ren- 


678 


SPECIFIC     PERFORMANCE. — PAROL     EVIDENCE. 


shcm  V.  Gans,  7  Barr,  119 ;  Eearich 
V.  Swinehart,  1  Jones,  233.  "  It  is 
doubtless  a  general  principle  of  law," 
said  Rogers,  J.,  in  Oliver  v.  Bell, 
that  i^arol  evidence  shall  not  be  ad- 
mitted to  destroy,  control,  add  to,  or 
alter  a  written  instrument,  but  the  ex- 
ceptions to  the  rule  are  equally  well 
settled.  Ever  since  the  case  of  Ilurst 
V.  Kirhhride,  cited  in  1  Binn.  616,  it 
has  been  the  practice  to  receive  parol 
evidence  of  what  passed  at  the  time  of 
the  execution  of  deeds,  or  at  and  be- 
fore the  execution.  When  the  fairness 
of  the  transaction  is  impeached,  it  is 
immaterial  whether  the  party  intended 
a  fraud,  at  the  time  of  the  contract, 
or  whether  the  fraud  consists  in  the 
fraudulent  use  of  the  instrument;  Hidtz 
V.  Wriglit,  16  S.  &  R.  345  ;  Li/on  v. 
Euntingdon  Bank,  14  Id.  283 ;  Hiom- 
son  V.  White,  1  Dall.  424,  are  of  this 
description.  In  Thompson  v.  White, 
the  fraud  consisted  in  Lawrence  Sal  tar's 
obtaining  a  conveyance  of  his  wife's 
estate  under  a  solemn  promise  to  make 
a  settlement,  which  he  afterwards  ne- 
glected to  do.  It  has  never  been  doubt- 
ed that  he  entered  into  the  contract 
with  good  faith.  In  his  last  sicknesss, 
he  expressed  uneasiness  at  leaving  no 
will,  because,  as  had  always  been  sup- 
posed, he  thereby  intended  to  comply 
with  his  promise.  The  fraud  consist- 
ed in  the  fraudulent  use  which  was 
attempted  to  be  made  of  the  deed,  in 
the  exclusion  under  the  general  rule 
of  law,  of  Mary  Thompson,  the  sister 
of  Mr.  Salter,  and  to  whom  Lawrence 
Saltar  promised  to  assure  the  property. 
"As  to  fraud,"  said  Justice  Tod,  who 
delivered  the  opinion  of  the  court,  in 
Ilultz  V.  Wright,  "  it  is  not  supposed 
to  be  necessary  to  have  proof  express, 
that  a  writinir  has  been  obtained  frau- 


dulently, in  order  to  admit  parol  evi- 
dence against  it,  on  that  score  ;  but 
parol  evidence  may  be  permitted  to 
resist  the  fraudulent  use  of  a  writing 
in  the  obtaining  of  which  no  fraud 
can  be  made  to  appear."  That  was  a 
case  where,  in  debt  for  rent,  parol  evi- 
dence was  admitted  to  show,  that  in 
making  a  lease  for  nine  years,  render- 
ing rent,  it  was  understood,  and  agreed 
by  all  parties,  that  for  the  last  nine 
months,  no  rent  should  be  payable. 
So  also  in  an  action  on  a  single  bill, 
the  defendant,  under  the  plea  of  pay- 
ment, is  permitted  to  prove,  that  the 
bill  was  taken  subject  to  a  parol  agree- 
ment, made  long  before  its  date ;  Lyon 
V.  Huntingdon  Banh,  14  S.  »&  R.  283. 
In  Robinson  v.  Eldridge,  10  Id.  142, 
as  well  as  in  the  case  just  cited,  the 
defence  consisted  of  a  number  of  facts, 
which  took  place  at  different  times, 
and  which  all  tended  to  make  one 
whole.  It  is  difficult  to  discover  any 
difference,  between  the  evidence  of- 
fered, and  the  evidence  which  was 
received  in  Campbell  v.  J/'  Clenachan, 
6  S.  &  R.  172.  Parol  evidence  was 
given  of  what  passed  between  the  par- 
ties, at,  and  immediately  before  the 
execution,  when  the  plaintiff  was  in- 
duced to  execute  the  articles  of  agree- 
ment, by  the  defendant's  promises. 
The  case  of  Campbell  v.  M' Clenachan , 
was  an  action  on  the  case,  on  a  parol 
contract,  in  which  the  defendant  pro- 
mised the  plaintiff,  to  permit  him  to 
take  as  much  timber  from  the  lands 
purchased  by  the  defendant  from  the 
plaintiff,  as  would  be  sufficient  to  build 
a  boat  to  go  down  the  Ohio.  The 
same  defence,  as  has  been  urged  here, 
was  then  taken,  but  without  avail. 
As  is  justly  observed,  to  refuse  per- 
formance of  a  verbal    promise,  after 


W  0  0  L  L  A  M     V.     H  E  A  R  N. 


679 


Laving  made  use  of  it  to  get  the  plain- 
tiff's signature  to  the  agreement,  is  a 
trick,  of  which  the  law  will  not  per- 
mit the  defendant  to  avail  himself. 
If  we  are  to  take  what  the  plaintiff 
offers  to  prove  to  be  true,  what  are  we 
to  think  of  the  defendants'  conduct  ? 
Surely  every  person  must  see  they  are 
attempting  to  avail  themselves  of  the 
legal  advantage,  at  the  expense  of 
every  principle  of  honor  and  common 
honesty.  It  may  be- a  difficult  matter 
in  some  eases,  to  prevent  the  fraudu- 
lent u.se  of  an  instrument,  except 
through  the  medium  of  parol  evi- 
dence. For  the  same  principle  I  also 
cite,  1  Ld.  Raym.  464;  Christ  v. 
Diffenhach,  1  S.  &  11.464;  Lessee  of 
DinJcle  V.  Marshall,  3  Binn.  587. 

"  I  do  not  feel  myself  at  liberty  to 
reason  on  the  policy  of  the  rule,  or  the 
exceptions  to  it.  It  is  sufficient  for 
me,  that  the  point  has  been  settled 
by  a  train  of  authorities,  which  it  is 
now  too  late  to  overturn." 

The  rule  thus  laid  down,  is  obvious- 
ly a  branch  of  the  doctrine  of  equi- 
table estoppel,  which  precludes  a  party 
from  falsifying  expectations  which  he 
has  induced,  and  on  the  faith  of 
which  others  have  acted.  It  would  ac- 
eordiiTgly  appear,  that  a  verbal  pro- 
mise made  at  the  time  of  executing 
an  agreement,  cannot  be  enforced  even 
under  this  rule,  unless  it  was  so  far  a 
determining  cause  for  the  execution 
of  the  agreement,  as  to  justify  the  be- 
lief that  the  agreement  would  not 
have  been  executed,  had  not  the  pro- 
raise  been  made ;  Hain  v.  Kalhach, 
14  S.  &  R.  159.  See  Pothier,  Part 
1,  ch.  1,  art.  3,  sect.  3.  And  it  has 
been  held  equally  essential,  that  the 
stipulation  set  up  as  modifying  the 
writing,  should  be  so  far  contempora- 


neous with  its  execution,  as  to  rebut 
the  presumption,  that  it  was  inten- 
tionally excluded  by  the  parties,  or 
merged  in  the  contract  as  finally  exe- 
cuted ;  Cozens  v.  Stevenson,  5  S.  & 
R.  421. 

The  principle  followed  in  Oliver 
V.  Bell,  was  applied  in  Coger's  Ex' or 
V.  iWGee,  2  Bibb,  321,  and  Tai/lor 
V.  Glhnan,  25  Vermont,  411 ;  and 
the  case  of  Wood  v.  Dwarris,  11  Ex- 
chequer, 493,  also  tends  to  support 
this  view  of  the  question,  by  decid- 
ing that  a  declaration  in  the  prospec- 
tus of  an  insurance  company,  that  no 
loss  shall  be  disputed,  except  on  the 
ground  of  fraud,  will  preclude  the 
company  from  setting  up  a  breach  of 
the  conditions  of  a  policy  subsequent- 
ly effected  by  the  plaintiff,  which  would 
unquestionably  have  operated  as  a  bar, 
had  it  not  been  for  the  estoppel  cre- 
ated by  the  language  of  the  prospectus. 
And  on  the  other  hand,  the  cases  of 
i?o5sonv.i7"«rioeZ?,  6  Georgia,  589,610, 
and  Miller  v.  Cotten,  5  Id.  341,  will  be 
found  to  present  an  able  and  learned 
vindication  of  the  opposite  doctrine, 
that  the  breach  of  a  parol  stipulation, 
on  the  faith  of  which  a  written  agree- 
ment has  been  executed,  does  not 
amount  to  anything  more  than  the 
breach  of  any  other  promise,  which 
has  been  held  out  as  an  inducement 
to  others,  and  that  fraud  cannot  be 
established  in  either  case,  without 
proving  that  the  subsequent  failure  to 
fulfil  the  engagement,  was  the  result 
of  an  original  fraudulent  design  ;  TTIY- 
son  V.  ^Vatts,  9  Maryland,  355. 

It  seems,  however,  well  settled  un- 
der all  the  authorities,  that  in  every 
case  not  within  the  Statute  of  Frauds, 
in  which  the  answer  admits  that  the 
contract  as  written,  varies  from  the 


680 


SPECIFIC      PERFORMANCE. — PAROL     EVIDENCE. 


true  one,  parol  evidence  is  admissible 
to  show  in  what  the  variation  consists ; 
Thomas  v.  M^  Cormadc,  9  Dana,  108  ; 
Moses  V.  Murgatroi/d,  1  Johnson,  Ch. 
119. 

AVhatever  may  be  the  weight  of  the 
doctrine,  that  a  party  who  chooses 
to  execute  a  written  agreement  on  the 
faith  of  an  assurance,  that  its  literal 
and  legal  construction  will  not  be  en- 
forced, or  that  effect  shall  be  given  to 
material  stipulations  which  have  been 
omitted,  is  not  entitled  to  the  assist- 
ance of  a  court  of  equity  to  relieve 
him  from  the  consequences  of  his  own 
act,  it  does  not  apply  to  those  cases  in 
which  the  writing  accidentally  fails  to 
express  the  agreement,  and  where  it 
is  executed  in  ignorance  of  the  mis- 
take. For  where  the  variance  between 
the  real  and  the  written  contract  is  not 
known,  neither  party  can  be  charged 
with  wilfully  exposing  himself  to  its 
consequences.  It  is  well  settled,  that 
under  these  circumstances  parol  evi- 
dence is  admissible  in  equity  to  prove 
the  mistake,  and  to  show  in  what  par- 
ticulars the  contract  actually  entered 
into,  differs  from  that  reduced  to  writ- 
ing; M'Cann  v.  Letcher,  8  B.  Mon- 
roe, 320  ;  Calverly  v.  Williams,  1  Ves. 
206 ;  Wilkm  v.  Willan,  16  Id.  72 ; 
Bellas  V.  Stone,  14  New  Hampshire, 
175;  Broion  v.  Broivn,  8  Leigh,  1; 
Blair  V.  McDonnell,  1  Halsted,  Eq. 
327;  Cliamherlain  y.  Thompson,  \Q 
Conn.  243;  Wooden  v.  Ilaviland,  18 
Id.  101 ;  Langdon  v.  Keith,  9  Ver- 
mont, 299 ;  Goiccr  v.  Sterner,  2  Whar- 
ton, 75 ;  Hamilton  v.  Asslin,  14  S.  & 
R.  448 ;  Lauchner  v.  Rex, ,  8  Har- 
ris, 464;  Stone  v.  Hall,  11  Alabama, 
557 ;  Larkins  v.  Biddle,  21  Id.  252 ; 
Lauderdfde  v.  Hallock,  7  Smedes  k 
Marshall,  622;    Ross  \.   Wilson,  lb. 


753;  Irich  v.  Fulton,  3  Grattan, 
193 ;  although  courts  exercise  this 
branch  of  jurisdiction  with  much  cau- 
tion, and  refuse  relief,  unless  the 
grounds  on  which  it  is  sought  are 
clear  and  unequivocal ;  ILdl  v.  Clag- 
get,  2  Maryland,  Ch.  153;  Philpot 
V.  Elliott,  4  Id.  273. 

The  application  of  this  doctrine  is 
comparatively  simple,  when  the  mis- 
take consists  in  the  omission  or  intro- 
duction of  conditions  or  clauses,  which 
vary  the  actual  tenor  of  the  instru- 
ment, and  render  it  different  from 
that  which  it  was  intended  to  be  by 
the  parties.  But  it  is  more  difficult 
when  the  mistake  is  not  as  to  the  tenor 
of  the  instrument,  but  as  to  its  legal 
effect  and  operation. 

It  has  already  been  stated,  that 
fraudulent  misrepresentations  as  to 
the  legal  effect  of  an  instrument, 
made  to  one  who,  from  inability  to 
read,  ignorance  of  the  language  in 
which  itis  written,  orfromothercauses, 
is  unable  to  inform  himself  of  its 
actual  tenor,  ai-e  sufficient  to  avoid  the 
instrument  at  law,  and  will,  therefore, 
undoubtedly  entitle  the  injured  party 
to  relief  in  equity.  And  there  can  be 
no  doubt,  that  equity  will  grant  relief 
whenever  one  party  is  misled,  as  to 
the  true  purport  or  operation  of  a  deed 
or  writing,  by  the  representations  of  the 
other,  whether  the  misstatement  had 
in  its  origin  a  wish  to  deceive ;  Broad- 
welly.  Broad irell,  1  Gilman,  899, 608 ; 
Cathcart  v.  Robinson,  5  Peters,  264, 
276;  or  in  the  mistaken  belief  of  him 
who  made  it;  and  even  when  the  per- 
son who  is  deceived  is  able  to  read,  and 
actually  read  the  instrument  before 
executing  it ;  Tijson  v.  Passmore,  2 
Barr,  122  ;  Snijder  v.  May,  7  Harris, 
239;  ante. 


WOOLLAM     V.     HEARN. 


681 


But  there  has  been  much  discus- 
sion, as  to  whether  parties  who  intend 
to  do  a  particular  thing,  or  eifect  a 
particular  object,  and  execute  an  in- 
strument which  in  point  of  fact  does 
or  effects  something  else,  can  obtain 
any  relief  in  a  court  of  equity.  The 
weight  of  authority  seems  to  be,  that 
where  there  is  no  fraud  or  misrepre- 
sentation, and  in  the  absence  of  mis- 
take as  to  the  actual  stipulations  of 
the  instrument,  no  relief  can  be  af- 
forded ;  Lyon  v.  Richardson,  2  John- 
son, Ch.  51 ;  Schmidt  v.  Lahutut,  1 
Specr,  Equity,  421 ;  Doiv  v.  Carter, 
lb.  413 ;  Garwood  v.  Eldridge's 
Ad'r,  1  Green,  Ch.  145 ;  Wheaton  v. 
Wheaton,  9  Conn.  96 ;  Hunt  v.  Rous- 
maniere,  8  Wheaton,  174 ;  1  Peters, 
1 ;  Watkins  v.  StocJcet,  6  Harris  & 
Johnson,  445  ;  ]\PEldcry  v.  Shi^jley, 
2  Maryland,  35  ;  Showman  v.  Miller, 
6  Id.  479 ;  Dujiree  v.  Thomjyson,  4 
Barbour,  279 ;  Leavett  v.  Palmer,  3 
Comstock,  19. 

There  can  be  no  doubt  as  to  the 
propriety  of  this  course  of  decision, 
in  cases  where  the  instrument  fully 
effectuates  the  immediate  purpose  of 
the  parties,  and  is  only  objectionable, 
because  it  fails  in  attaining  their  ul- 
timate object,  from  the  intervention 
of  subsequent  events  or  causes.  But 
there  may  be  more  room  for  doubt, 
when  the  immediate  effect  of  the  in- 
strument differs  from  that  contem- 
plated by  those  who  execute  it,  as  in 
the  case  of  a  conveyance  in  fee,  exe- 
cuted under  the  impression  that  it 
passes  an  estate  tail.  In  Hunt  v.  Rous- 
vianier,  money  had  been  advanced, 
with  an  understanding  that  it  should 
be  secured  by  mortgage  or  otherwise, 
on  a  vessel  belonging  to  the  borrower, 
and  the  lender  subsequently  took  a 


power  of  attorney  to  sell  the  vessel 
and  apply  the  proceeds  in  satisfaction 
of  his  debt,  under  the  impression  that 
it  would  prove  as  effectual  a  security 
as  a  mortgage.  The  power  having 
been  subsequently  revoked  by  the 
death  of  the  giver,  before  it  could  be 
made  effectual  for  the  purpose  for 
which  it  was  given,  a  bill  in  equity 
was  filed  for  relief,  on  the  ground  of 
mistake.  But  it  was  held  by  the 
court,  on  the  second  hearing  of  the 
case,  after  much  doubt  had  been  ex- 
pressed on  the  first,  that  as  the  mis- 
apprehension was  one  purely  of  law, 
and  as  to  the  ultimate  and  incidental 
effect  of  the  security  taken,  no  relief 
could  be  afforded.  Here  it  is  evi- 
dent, that  the  parties  executed  the 
power  of  sale,  with  full  knowledge 
that  it  was  a  mere  power,  although 
without  knowing  or  adverting  to  the 
fact,  that  it  was  defeasible  by  the  death 
of  the  grantor.  Such  a  case  obvious- 
ly differs  widely  from  those,  in  which 
an  instrument  is  executed  under  a 
mistaken  impression,  as  to  its  imme- 
diate and  legal  effect,  although  with 
a  full  knowledge  of  its  actual  tenor ; 
The  State  v.  Fauj),  8  English,  129  j 
Larhins  v.  Biddle,  21  Alabama,  252. 
Thus,  in  Willan  v.  Willan,  16  Vesey, 
72,  a  lease  was  ordered  to  be  deliver- 
ed up  and  cancelled,  on  the  ground 
that  neither  party  understood  its  legal 
effect  and  operation ;  while  in  Lav- 
kins  V.  Biddle,  it  seems  to  have  been 
thought  that  the  execution  of  a  bill  of 
sale,  under  the  mistaken  belief,  that  its 
terms  imported  a  warranty,  would  war- 
rant the  rectification  of  the  mistake  by 
equity.  But  relief  is  generally  refused, 
even  in  these  eases,  on  the  ground  that 
the  danger  of  allowing  men  to  avoid 
their  contracts,  under  cover  of  an  alio- 


682 


SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 


gation,  that  they  misunderstood  their 
legal  effect,  more  than  counterbalances 
any  advantage  which  can  arise  from 
correcting  particular  mistakes  j  Du- 
pree  v.  M' Donald,  4  Dessaussure,  209; 
3I'3faJwn  V.  Spanghr,  4  Randolph, 
51.  An  amendment  may,  however, 
always  be  granted  with  safety,  when 
there  is  anything  to  amend  by;  and 
hence,  where  a  deed,  drawn  in  pur- 
suance of  a  prior  contract,  is  so  worded 
inadvertantly,  as  not  to  give  effect  to 
the  contract,  equity  will  intervene, 
and  reform  the  deed ;  Key  v  Simp- 
son, 6  Iredell,  Eq.  452. 

It  being  once  admitted  that  equity 
will  receive  parol  evidence,  for  the 
purpose  of  showing  that  through  fraud 
or  mistake,  a  deed  or  other  writing 
does  not  represent  the  real  agreement 
of  the  parties ;  it  necessarily  follows, 
that  it  will  act  upon  its  ordinary  prin- 
ciple of  considering  that  which  ought 
to  be  done  as  'actually  done,  and  will 
give  effect  to  the  instrument,  not  as 
it  is,  but  as  it  was  intended  to  be, 
and  but  for  the  fraud  or  mistake 
would  have  been.  And  it  is  obvious, 
that  on  general  principles,  and  apart 
from  express  enactments,  this  doctrine 
must  apply  in  favor  of  plaintiffs  as 
well  as  of  defendants,  and  whether 
the  assistance  of  equity  is  invoked  for 
the  purpose  of  enforcing  the  contract 
as  amended,  or  to  prevent  it  from  be- 
ing: enforced  without  amendment. 
The  law  was  so  held  in  the  able  opi- 
nion delivered  by  Chancellor  Kent,  in 
Gillespie  v.  Moon,  2  Johnson,  Ch. 
585.  It  was  there  sought  to  resist  a 
bill  filed  to  have  a  reconveyajace  of 
fifty  acres  of  land,  which  had  been  in- 
serted by  a  mistake,  in  a  deed  from 
the  plaintiff  to  the  defendant,  on  the 
ground  that  if  parol  evidence  were 


admissible  in  any  case  to  vary  the 
effect  of  a  written  instrument,  it  could 
only  be  so  when  adduced  in  favor  of 
a  defendant,  and  not  of  a  complain- 
ant, and  for  the  purpose  of  resisting 
a  recovery  and  not  of  obtaining  one. 
But  this  argument  was  overruled  by 
the  chancellor,  on  the  obvious  ground 
that  if  it  were  once  admitted,  that 
parol  evidence  might  be  received  for 
the  purpose  of  proving  fraud  or  mis- 
take in  the  preparation  of  a  deed  or 
writing,  there  was  no  room  for  con- 
tending that  it  should  be  available  in 
favor  of  one  party  or  for  one  purpose 
rather  than  another. 

"  It  has  been  said,  that  there  was 
no  instance  of  a  mistake  corrected  in 
favor  of  a  plaintiff,  against  the  answer 
of  the  defendant,  denying  the  fact  of 
mistake.  But  I  do  not  understand  any 
of  the  dicta  on  this  point  to  mean, 
that  the  answer,  denying  the  mistake, 
shuts  out  the  parol  proof,  and  renders 
relief  unattainable,  however  strong 
that  proof  may  be.  The  observations 
of  Lord  Eldon,  in  the  case  of  The 
Marquis  of  Toionshend  v.  Stangroom, 
certainly  imply  no  more,  than  that  the 
answer  is  entitled  to  weight,  in  oppo- 
sition to  the  parol  proof ;  but  it  cer- 
tainly can  be  overcome  by  such  proof. 
In  that  very  case,  the  answer  denied 
the  mistake,  yet  parol  proof  was  held 
admissible.  The  lord  chancellor  only 
said,  that  the  evidence  must  be  taken 
with  due  regard  hcing  had  to  the  an- 
swer, and  that  it  must  not  be  forgot- 
ten, to  what  extent  the  answer  of  one 
of  the  parties  admits  or  denies  the  in- 
tention. Lord  Thurlow  said,  that  there 
was  so  much  diflficulty  in  establishing 
the  mistake,  to  the  entire  satisfaction 
of  the  court,  that  it  had  never  prevailed 
against  the  aruswcr  denying  the  mistake. 


WOOL  LAM     V.     HEARN. 


683 


I  am  not  inclined,  on  .iglit  grounds,  to 
contradict  sucli  higli  authority,  but, 
as  I  read  the  case  of  Pitcairn  v.  Og- 
lounie,  (2  Yesey,  375,)  before  Sir 
John  Strange,  the  bill  was  to  be  re- 
lieved against  an  annuity  bond,  and 
to  reduce  the  sum  from  150?.  to  100/., 
according  to  the  original  understand- 
ing and  agreement  of  the  parties. 
The  answer  denied  positively  all  the 
circumstances,  and  every  particular 
of  the  private  agreement,  and  parol 
proof,  by  several  witnesses,  was  ob- 
jected to  and  admitted,  which  falsi- 
fied the  answer,  and  made  out  the  real 
agreement  to  the  satisfaction  of  the 
court,  and  though  relief  was  not 
granted,  it  was  refused  upon  other  and 
distinct  grounds  no  way  connected 
with  the  question,  as  to  the  compe- 
tency and  effect  of  the  proof. 

"  It  is  the  settled  law  of  this  court, 
as  was  shown  in  the  case  of  Bo>/d  v. 
M'Lean,  (1  Johns.  Ch,  Kep.  582,) 
that  a  resulting  trust  may  be  estab- 
lished by  parol  proof,  in  opposition  to 
the  deed,  and  in  opposition  to  the  an- 
swer denying  the  trust.  There  is  no 
reason  why  the  answer  should  have 
greater  effect  in  this  than  in  that  case, 
and  there  would  be  manifest  inconsis- 
tency in  the  doctrines  of  the  court,  if 
such  a  distinction  "existed.  The  case 
of  Marks  V.  Fell,  (1  Johns.  Ch.  Rep. 
598-9,)  which  was  referred  to  by  the 
defendant's  counsel,  admitted,  that 
parol  proof  of  mistakes  was  competent; 
and  it  was  held  not  to  be  sufficient,  in 
that  case^  because  it  consisted  of 
naked  confessions  of  a  party,  made 
seventeen  years  after  peaceable  posses- 
sion, under  a  deed.  The  confessions, 
in  that  case,  were  also  of  a  negative 
kind,  and  deduced  from  tacit  acquies- 
cence :  the  party  who  made  them  was 


dead,  and  the  possession  had  been, 
for  thirty  years,  under  the  deed,  and 
there  were  no  corroborating  circum- 
stances in  aid  of  the  confessions. 
Surely  there  is  nothing  to  be  drawn 
from  that  case,  in  opposition  to  the 
competency  of  the  proof  in  this. 

"  We  have  a  strong  case  on  this 
subject,  in  Washhiirn  v.  Merrills, 
which  was  decided  on  the  equity  side 
of  the  Supreme  Court  of  Connecticut, 
in  1801;  (1  Day's  Cases  in  Error, 
139.)  A  mortgagor,  in  that  case, 
made,  by  mistake,  in  1784,  an  abso- 
lute deed,  which  he  did  not  discover 
until  some  time  after.  The  mortgagee 
got  into  possession,  and,  in  March, 
1801,  sold  to  a  purchaser,  by  a  deed 
with  covenants  of  warranty.  In  Au- 
gust, 1801,  a  purchaser  under  the 
mortgagor  field  his  bill,  or  petition, 
against  the  purchaser  under  the  mort- 
gagee, to  redeem.  The  answer  set  up 
the  Statute  of  Frauds  as  a  defence ; 
and,  on  the  trial,  parol  proof  of  the 
mistake  was  offered  by  the  plaintiff, 
objected  to  and  admitted,  and  the 
deed  established  as  a  mortgage,  and  a 
right  of  redemption  decreed.  This 
decree  was  afterwards  uoanimously 
confimed  in  the  Court  of  Errors  of 
that  state. 

"  My  opinion,  accordingly,  is  that 
the  parol  proof,  in  this  case,  was  com- 
petent and  admissible,  and  that  it 
establishes,  most  clearly  and  conclu- 
sively, the  fact  of  the  mistake,  as 
charged  in  the  bill." 

It  is  well  settled,  in  accordance  with 
this  decision,  that  where  no  statutory 
enactment  intervenes,  parol  evidence 
is  admissible  on  the  part  either  of 
complainant  or  defendant,  to  reform  a 
deed  or  contract,  on  the  ground  of 
fraud  or  mistake,  and  to  carry  it  into 


684 


SPECIFIC     PERFORMANCE. — PAROL     EVIDENCE. 


execution  as  reformed ;  Keioson  v. 
Bufferlow,  1  Devereux,  Equity,  379 ; 
Rogers  v.  Atkinson,  1  Kelly,  12 ; 
Sliipp  V.  JSwann,  2  Bibb,  82;  Bellows 
V.  Stone,  14  New  Hampshire,  175; 
Smith  V.  Greely,  lb.  378 ;  i/y(7e  v. 
Tanner,  1  Barbour,  S.  C.  75 ;  Gover- 
neur  v.  T'iVws,  1  Edwards,  477;  6 
Paige,  347 ;  Harris  v.  The  Colum- 
liana  Ins.  Co.,  18  Ohio,  116 ;  Wehster 
V.  Harris,  16  Id.  490;  IPCall  v. 
Harrison,  1  Brockenbrough,  126 
Bailey  v.  Bailey,  8  Humphreys,  230 
TyootZen  V.  Haviland,  18  Conn.  101 
Chamherlain  v.  Thompson,  10  Id. 
243  ;  TFes%  v.  Thomas,  6  Har.  & 
Johnson,  24;  Clopton  v.  Martin,  11 
Alabama,  187  ;  Brady  v.  Parher,  4 
Iredell,  Eq.  430;  fAr/si  v.  Z>;^e«- 
ioc/t,  1  S.  &  R.  464;  il/o^/cre  v.  V/ic 
Pennsylvania  Ins.  Co.,  5  Rawle,  347: 
Goicer  V.  Sterner,  2  Whar.  75 ;  5oic- 
man  v.  Bittenhender,  4  Watts,  290 ; 
C/arZ-  V.  Partridge,  2  Barr,  13 ;  4  Id. 
166;  Susquehanna  Ins.  Co.  v.  Per- 
rine,  7  W.  &  S.  348 ;  Beardsley  v. 
Knight,  10  Vermont,  185 ;  Smith  v. 
Greeley,  14  New  Hampshire,  378; 
CrraV/  v.  Kittredge,  3  Foster,  231 ; 
Leitensdorfer  v.  Delphy,  15  Missouri, 
160.  But  this  branch  of  equity  juris- 
diction requires  great  caution  in  its 
application  in  practice,  and  should 
not  be  exercised  unless  upon  the  clear- 
est and  plainest  evidence;  Harrison 
V.  Hoioard,  1  Iredell,  Eq.  407  ;  Brady 
V.  Parher,  4  Id.  430 ;  Bailey  v.  Bai- 
ley, 8  Humphreys,  230;  Lyman  v. 
The  United  Ins.  Co.,  2  Johnson,  Ch- 
630;  17  Johnson,  373;  Beard  v. 
Linthicum,  1  Maryland  Ch.  345. 

The  general  principle  established 
by  the  decision  in  Gillesiyie  v.  Moon, 
may,  however,  like  all  general  prin- 
ciples, be  modified  by  special  enact- 


ment. And  as  the  Statute  of  Frauds, 
which  on  this  point  has  been  univer- 
sally introduced  into  the  legislation 
of  this  country,  expressly  provides 
against  the  creation  of  any  estate  or 
interest  in  land  without  writing,  it 
necessarily  follows,  that  if  a  party  who 
is  seeking  to  obtain  a  specific  perform- 
ance of  such  a  contract,  gives  parol 
evidence  to  prove  that  the  contract  is 
vitiated  by  fraud  or  mistake,  he  neces- 
sarily destroys  his  own  case,  for  the 
evidence  shows  that  the  contract  as  it 
stands,  is  not  the  true  one,  and  that 
the  real  contract  is  invalid  under  the 
statute.  The  result  is  the  same  where 
such  evidence  is  given  by  the  defend- 
ant, for  by  showing  that  the  real  con- 
tract on  which  the  plaintifi"  sues,  ought 
not,  and  that  the  real  contract  cannot 
be  enforced,  it  raises  an  effectual  bar 
to  the  relief  prayed  for  by  the  bill. 

The  operation  of  parol  evidence  of 
fraud  or  mistake,  on  a  written  con- 
tract is  to  reduce  the  whole  contract 
in  contemplation  of  law  to  parol,  and 
thus  bring  it  within  the  disabling 
eifect  of  the  statute;  Parkhurst  v. 
Van  Cortland,  1  Johnson,  Ch.  273  ; 
Moale  v.  Buchanan,  11  Gill  &  John- 
son, 314;  ante,  vol.  1,  p.  741.  And 
this  operation  is  the  same,  whether 
the  evidence  is  adduced  by  the  plain- 
tifi" or  defendant,  although  its  efi"eet 
may  be  to  sustain  the  defence  of  the 
one  and  defeat  the  recovery  of  the 
other.  It  is,  accordingly,  well  settled, 
that  although  a  defendant  may  give 
parol  evidence  of  fraud  or  mistake,  for 
the  purpose  of  defeating  a  bill  for  spe- 
cific performance.  Miller  v.  Chetwood, 
1  Green,  Ch.  199;  Best  v.  Stow,  2 
Sandford,  Ch.  298,  he  cannot  go  be- 
yond this,  and  after  varying  the  con- 
tract, have  a  decree  to  carry  it  into 


WOOLLAM     V.     HEARN. 


685 


effect  as  varied.  The  trae  rule,  said 
the  chancellor,  in  Miller  v.  Chetwood, 
is  to  be  found  in  Winch  v.  Winchester, 
1  Vesey  &  Beanies,  378,  where  the 
court  would  not  receive  parol  evidence, 
with  a  view  to  the  defendant's  having; 
the  contract  performed  with  an  abate- 
ment in  price,  although  they  received 
it  to  defeat  a  specific  performance 
altogether. 

Nor  is  the  decision  of  Chancellor 
Kent,  in   Moon    v.    Gillespie,  incon- 
sistent with  this    doctrine.     In  that 
case,  the   relief  sought   by  the   bill 
was  not  a  specific  performance  of  a 
contract,  resting  wholly  or  in  part  in 
parol,  but  against  the  fraud  of  the 
defendant,  in  taking  advantage  of  the 
mistake  in  the  conveyance,  to  retain 
more  than  he  had  actually  bought  and 
paid   for.     There  is  nothing  in  the 
Statute  of  Frauds  to  prevent  a  court 
of  law  from  setting  aside  a  contract 
in  writing,  for  the  sale  of  lands,  or  a 
deed  actually  conveying  them,  on  parol 
evidence  of  actual  or  legal  fraud;  nor 
is  there  anything  to  prevent.a  court  of 
equity  from  vacating  such  a  deed  or 
contract,  on  the  ground  of  equitable 
fraud  ;    Lord  Ahington  v.  Butler,  1 
Vesey,   jun.    206;     Calverhj  v.   Wil- 
liams, lb.   210;    Willan  v.    WiUan, 
16  Id.  72;  Torrey  v.  Buch,  1  Green, 
Ch.  366 ;  the  only  difference  being, 
that  where  the  fraud  does  not  extend 
to  the  whole  contract  or  conveyance, 
the  relief  given  in  equity  will  only  go 
as  far   as    the   fraud;    Beaumont  v. 
Bramley,  Turner  &  Russell,  41.     It 
was,  therefore,  entirely  consistent  with 
equitable  principles,  to  set  aside  the 
conveyance  to  the  defendant,  in  Gil- 
lespie v.  Moon,  as  to  that  portion  of 
the  land  which  he  could  not  retain 
without  fraud,  although  it  would  have 


been  a  violation  of  the  statute  to  have 
enlarged  the  operation  of  the  convey- 
ance. 

It  must  not  be  forgotten  in  reason- 
ing on  this  subject,  that  the  rule  of 
the  common  law,  with  regard  to  parol 
evidence,  is  essentially  different  from 
that    established    by   the   Statute  of 
Frauds,  although  both  rules  maysome- 
times  coincide  in  general  effect.     The 
common  law  rule  excludes  all  verbal 
testimony,    which   varies   or   contra- 
dicts a  written  instrament,  without 
regard  to  the  object,  for  which  it  is 
offered,  or  the  result  which  would  fol- 
low, were  it  admitted.     The  Statute 
of  Frauds  looks  only  to  the  object, 
and  declares  not  that  parol  evidence 
shall  be  inadmissible,  but  that  it  shall 
have  no  effect  in  passing  or  creatine 
a  trust  or  estate  in  land.     Before  the 
statute,  parol  evidence  was  admissible 
to  found  a  trust  in   favor  of  a  third 
person,   on  a   feoffment,    unless   the 
trust  were   denied  or  repelled  by  a 
deed    accompanying    the    feoffment. 
But  under  the  statute,  such  evidence 
is  inadmissible,  even  in  the  absence 
of  a  deed.     Apart  from  the  statute, 
if  the  evidence  be  admitted  without 
objection,   equity  will   not  refuse  to 
give  it  effect ;    Clietwood  v.  Brittan, 
1  Green,  Ch.  438;  Esmay  v.    Gor- 
ton, 18  Illinois,  483.     But  the  admis- 
sion that  an  oral  agreement  exists,  or 
of  evidence  of  its  existence,  will  not 
preclude  the  defendant  from  pleadin"- 
the  statute,  or  claiming  the  benefit  of  it 
in  his  answer,  if  the  case  falls  in  other 
respects  within  its  operation;    ante, 
vol.  1,  p.  745.     The  statutory  rule 
makes  parol  evidence  incompetent  for 
certain  purposes,  and  although  ren- 
dering it  inadmissible  for  these  pur- 
poses, does  not  exclude  it  when  offer- 


686 


SPECIFIC     PERFORMANCE. — PAROL     EVIDENCE. 


ed  for  others.  The  rule  at  common 
law  regards  such  evidence  as  essen- 
tially incompetent  to  vary  or  contra- 
dict a  deed  for  any  purpose.  Fraud 
and  mistake  create  an  exception  to  the 
latter  rule,  and  thus  render  parol  evi- 
dence admissible,  when  it  would  other- 
wise be  excluded.  But  they  do  not 
ordinarily  remove  the  disability  im- 
posed by  the  statute,  nor  give  parol 
evidence  the  power  to  bind  or  transfer 
an  interest  in  real  estate.  Hence 
arises  the  distinction,  that  fraud  or 
mistake  entitles  either  plaintiff  or  de- 
fendant to  relief,  so  far  as  it  can  be 
obtained,  by  a  refusal  to  execute  an 
agreement  relating  to  real  estate,  or 
by  setting  it  aside  when  executed,  but 
does  not  authorize  the  execution  of  an 
agreement  within  the  prohibition  of 
the  statute. 

This  distinction  was  clearly  laid 
down,  and  applied  by  the  Supreme 
Court  of  Maine,  in  the  case  of  Elder 
V.  Elder,  10  Maine,  80.  The  bill 
was  filed  for  the  purpose  of  correcting 
a  mistake  in  a  written  contract  for  the 
sale  of  a  lot  of  land,  in  the  township 
of  Windham,  by  showing  that  part  of 
the  land,  meant  to  be  embraced  in  the 
contract,  lay  in  the  township  of  West- 
brook.  It  is  by  no  means  clear,  that 
the  case  was  not  one  of  latent  ambi- 
guity, and  within  the  reach  of  parol 
evidence,  both  at  law  and  in  equity. 
But  it  was  treated  by  the  court  as  an 
attempt  to  vary  a  written  contract  re- 
lating to  land,  by  parol  evidence,  not 
for  the  purpose  of  setting  the  con- 
tract aside,  but  of  carrying  it  into  ef- 
fect as  varied.  And  it  was  hejd  to  be 
clearly  distinguishable  from  that  of 
GiUcapie  v.  Moon,  and  within  the 
prohibition  of  the  Statute  of  Frauds. 
"  The    case    of    Gillespie  v.    iJ/wH," 


said  Weston,  J.,  "  is  relied  upon  as 
an  authority  in  favor  of  the  plaintiff. 
The  defendant  there  had  agreed  to 
purchase  two  hundred  acres  of  land, 
the  location  and  bounds  of  which 
were  well  understood.  But  by  mis- 
take, clearly  proved  by  parol,  the 
deed  embraced  fifty  acres  more.  The 
defendant,  perceiving  his  advantage, 
although  he  acknowledged  the  mis- 
take to  several  persons,  insisted  upon 
holding  all  the  land,  covered  by  his 
deed.  This  claim,  so  clearly  against 
equity  and  good  conscience,  was 
strongly  tinctured  with  fraud;  for 
there  is  little  difference  in  moral  tur- 
pitude, between  fraudulently  making 
a  deed  conveying  more  than  is  intend- 
ed by  the  parties,  and  attempting  to 
hold  the  same  advantage,  where  it 
arises  from  mistake  or  accident.  In- 
deed fraudulent  conduct  is  distinctly 
imputed  to  him  in  the  opinion  of  the 
court."  The  chancellor  says,  "the 
only  doubt  with  me  is,  whether  the 
defendant  was  not  conscious  of  the 
error  in  the  deed,  at  the  time  he  re- 
ceived it,  and  executed  the  mortgage, 
and  whether  the  deed  was  not  accept- 
ed by  him  in  fraud,  or  with  a  volun- 
tary suppression  of  the  truth.  That 
fraudulent  views  very  early  arose  in 
his  mind  i^  abundantly  proved.  If 
it  was  a  case  of  fraud,  as  well  as  of 
mistake,  there  could  be  no  question 
either  of  the  admissibility  of  parol 
testimony,  or  that  the  plaintiff  was 
entitled  to  relief.  Indeed  he  would 
have  been  so  entitled  at  law.  But  the 
measure  of  relief  would  have  varied. 
At  law  a  fraudulent  deed  is  entirely 
void.  In  equity  its  effects  may  be  de- 
feated only,  so  far  as  it  is  intended  to 
have  a  fraudulent  operation.  But 
aside  from  the  fraudulent  views,  which 


"W  0  0  L  L  A  M     V.     H  E  A  R  N. 


687 


may  always  be  imputed  to  a  party, 
who  would  take  advantage  of  a  mis- 
take, that  alone  may  be  regarded  in 
equity  as  an  infirmity  calling  for  relief, 
where  it  goes  to  the  whole  subject- 
matter  of  a  conveyance,  or  where  it  ef- 
fects only  a  part  of  it.  It  is  not  charg- 
ing a  party  upon  an  executory  contract, 
in  relation  to  real  estate,  which  cannot 
be  enforced  unless  in  writing  ;  but  it 
shows  defects  to  defeat  the  operation 
of  a  written  contract.  It  is  in  the 
nature  of  an  injunction  upon  a  party, 
not  to  avail  himself  of  an  advantage 
against  good  conscience.  It  does  not 
make  a  new  contract,  but  examines 
the  quality,  extent,  and  operation  of 
one  formally  executed  by  the  parties. 
It  is  one  thing  to  limit  the  effect  of  an 
instrument,  and  another  to  extend  it 
beyond  what  its  terms  import.  A 
deed  by  mistake  conveys  two  farms, 
instead  of  one.  If  the  suffering  party 
is  relieved  in  such  a  case  by  a  court 
of  chancery,  full  effect  is  not  given 
to  the  terms  of  a  written  instrument. 
But  the  Statute  of  Frauds  does  not 
prescribe  what  effect  shall  be  given 
to  contracts  in  writing  :  it  leaves  that 
to  be  determined  in  courts  of  law  and 
equity.  A  deed  conveys  one  farm, 
when  it  may  be  proved  by  parol,  that 
it  should  have  conveyed  two.  Here 
equity  cannot  relieve  without  violat- 
ing the  statute.  To  do  so,  would  be 
to  enforce  a  contract,  in  relation  to  the 
farm  omitted,  without  a  memorandum 
in  writing,  signed  by  the  party  to  be 
charged,  or  by  his  authorized  agent. 
These  are  distinctions,  which  may  be 
fairly  taken,  between  the  case  cited 
from  New  York,  where  the  plaintiff 
sought  to  be  relieved  from  the  undue 
operation  of  a  deed,  which  conveyed 
too   much,   and  the  case  before  us, 


where  the  prayer  of  the  plaintiff  is, 
that  a  contract  in  writing  may  be  so 
extended  by  parol  testimony,  as  to 
embrace  more  land  than  the  contract 
covers.  But  whether  this  court,  sit- 
ting as  a  court  of  equity,  would  re- 
ceive parol  evidence  of  a  mistake  in  a 
deed,  to  restrain  its  operation,  it  is 
not  necessary  to  decide.  There  may 
be  a  great  appearance  of  equity  in 
such  a  proceeding ;  but  it  may  admit 
of  question,  whether  more  perfect  jus- 
tice would  not  be  administered,  by 
holding  parties  to  abide  by  their  writ- 
ten contracts,  deliberately  made,  and 
free  from  fraud.  As  far  as  this  rule 
has  been  relaxed  by  the  clear,  une- 
quivocal, and  settled  practice  of  chan- 
cery, we  are  doubtless  bound  by  it,  in 
administering  that  of  our  system,  but 
we  are  not  disposed  to  adopt  any  new 
or  doubtful  exception  to  so  salutary  a 
rule." 

In  Jordan  v.  Satokins,  3  Bro.  C. 
C.  388 ;  1  Ves.  402;  Rich  v.  Jackson, 
4  Bro.  C.  C.  514;  CUnan  v.  Cooke, 
1  Schoales  &  Lefroy,  92 ;  Woollam  v. 
Hearn,  7  Ves.  211,  and  in  Higginson 
V.  Clowes,  15  Ves.  516,  the  doctrine 
maintained  is,  that  a  party,  seeking 
the  specific  performance  of  an  agree- 
ment, and  proposing  to  introduce  new 
conditions,  or  to  vary  those  which  ap- 
pear in  a  written  instrument,  will  net 
be  permitted  to  do  so  by  parol  testi- 
mony. And  in  Dwight  v.  Pomeroy 
et  al,  17  Mass.  303,  Parker,  C.  J., 
regards  this  principle  as  fully  settled 
by  the  more  recent  chancery  decisions 
in  England,  and  that  a  few  cases, 
bearing  a  different  aspect,  have  been 
explained  away  or  overruled  by  subse- 
quent decisions. 

The  doctrine  thus  held  is  sustained 
by  the  cases  of  We&ibrook  v.  Harheh- 


688 


SPECIFIC     PEEFORMANCE. — PAROL     EVIDENCE. 


son,  2  M'Cord,  Ch.  112;  and  Broohs 
V.  Wheehck,  11  Pick.  439,  and  was 
fully  approved  and  adopted  in  the  re- 
cent case  of  Oshoni  v.  PhelpSj  19 
Conn.  63.  In  Osborn  v.  Pheljjs,  the 
plaintiff  applied  for  relief  against  a 
mistake  in  the  execution  of  a  written 
agreement  for  the  sale  of  land,  by 
which  the  agreement  was  rendered  on 
its  face  contradictory,  if  not  unintelli- 
gible. The  mistake  was  obvious  in 
itself,  and  distinctly  proved  by  the 
evidence,  so  that  the  only  question 
was  as  to  whether  it  could  be  reme- 
died. It  was  held  by  the  court,  that 
the  words  of  the  Statute  of  Frauds 
being  imperative,  could  not  be  dis- 
pensed with  even  by  a  court  of  equity, 
and  it  was  consequently  decided,  that 
as  the  complainant  could  not  make 
out  his  case  upon  the  writings,  with- 
out a  resort  to  parol  proof,  the  specific 
performance  sought  by  the  bill,  must 
be  refused.  In  support  of  this  deci- 
sion, the  court  referred  to  the  case  of 
JE/der  V.  Elder,  and  to  that  of  The  At- 
torney/-General  V.  SUwell,  1  Younge 
&  Col.  Exch.  559,  and  then  went  on 
to  say,  "These  cases  appear  to  be 
founded  upon  a  just  and  reasonable 
construction  of  the  statute,  and  fully 
establish  the  rule,  that  if  two  parties 
enter  into  an  agreement,  respecting 
the  sale  of  estate,  and  fail  to  reduce 
that  agreement  to  writing,  according 
to  their  intention,  it  is  not  competent 
for  the  pui'chascr  to  come  into  a  court 
of  chancery,  for  the  purpose  of  having 
the  written  agreement  rectified  by  the 
aid  of  parol  evidence,  and  then  the  exe- 
cution enforced.  This  rule  docs  not 
apply,  where  the  mistake  is  set  up  by 
way  of  defence  against  a  claim  for  the 
specific  execution  of  a  contract.  In 
such  case,  the  object  is  not  to  enforce 


the  execution  of  a  parol  agreement, 
but  to  prevent  the  execution  of  a 
written  one,  which  the  parties  never 
intentionally  made,  to  resist  one  which, 
to  enforce,  would  be  inequitable  and 
unjust.  It  was  not  the  object  of  the 
statute  to  give  any  greater  efiicacy  to 
written  contracts  for  the  sale  of  lands 
than  they  possessed  at  the  common 
law ;  but  merely  to  require  such  con- 
tracts to  be  made  in  writing,  in  order 
to  lay  the  foundation  of  a  suit  at  law 
or  in  equity." 

Similar  language  was  held  in  the 
case  of  Miller  v.  Chetioood,  1  Green, 
Chancery,  199,  where  it  was  said,  that 
parol  evidence  of  fraud  or  mistake, 
might  be  set  up  by  the  defendant  as  a 
bar  to  the  specific  execution  of  a  writ- 
ten contract,  although  proved  merely 
by  parol ;  but  that  the  complainant 
must  abide  by  the  writing  as  it  stood, 
and  could  not  vary  its  effect  by  oral 
testimony.  And  the  same  point  was 
decided  in  the  case  of  Best  v.  Stow, 
2  Sandford,  Ch.  298,  where  the  court 
held  the  following  language  :  "  The 
defendant  in  answer  to  a  bill  for  a 
specific  performance,  may  prove  by 
parol  evidence,  that  the  written  instru- 
ment sought  to  be  enforced  against 
him,  does  not  correctly  and  truly  ex- 
press the  agreement  of  the  parties,  but 
that  through  fraud,  surprise  or  mis- 
take, there  is  some  material  omission, 
insertion  or  variation,  contrary  to  the 
intention  or  understanding  of  the  par- 
ties; 2  Story,  Eq.  §§  769,  770,  and 
note;  1  Sug.  on  Vend.  ch.  3,  §  8,  p. 
224,  &c.,  6th  Am.  ed. ;  1  Phill.  Ev., 
4  Am.  ed.  569.  And  see  The  Mar- 
quis of  Toionsend  v.  Staiujroom,  6 
Ves.  328 ;  Ramshottom  v.  Gosden,  1 
V.  &  B.  165;  Gillesjne  v.  Moo7i,  2 
J.  C.  II.  585  ;  Rich  v.  Jackson,  4  Bro. 


WOOLLAM     V.     HEAKIiT. 


689 


C.  C.  614 ;  S.  C.  6  Ves.  334,  note  c. 
I  will  mention  a  few  of  the  cases,  in 
which  this  principle  has  been  applied. 
In  Joj/Hes  V.  Stafham,  3  Atk.  388, 
the  defendant  was  permitted  to  prove 
that  the  agreement  between  the  par- 
ties was,  that  the  rent  was  to  be  paid, 
clear  of  taxes,  which  clause  was  omit- 
ted in  the  agreement,  as  written  and 
signed. 

"  Clark  V.  Grant,  14  Ves.  519,  524, 
was  a  case,  where  performance  was 
refused  upon  a  parol  variation  of  the 
written  contract.  In  Winch  v.  Vtln- 
chcster,  1  V.  &  B.  375,  parol  evidence 
of  the  auctioneer,  warranting  the 
quality  of  land,  was  received  in  oppo- 
sition to  a  specific  performance  of  a 
contract,  which  expressed  the  quantity 
to  be  forty-one  acres,  more  or  less. 

"  In  Clinan  v.  Cooke,  1  Sch.  &  Lef. 
22,  88,  39,  Lord  Redesdale  fully  ap- 
proved, and  admirably  vindicated  the 
principle,  as  applicable  to  defendants 
resisting  specific  performance ;  but 
he  refused  to  apply  it  in  favor  of 
the  complainant,  who  sought  to  en- 
force performance.  And  Sir  William 
Grant,  Master  of  the  Rolls,  pursued 
the  same  course  in  Woollam  v.  Hearn, 
7  Ves.  211,  at  the  same  time  indicat- 
ing the  established  rule,  in  behalf  of 
defendants. 

"  I  think  the  defendant  here  is  justi- 
fied in  saying  that  the  instrument 
which  he  signed,  did  not  contain  the 
agreement,  which  he  entered  into, 
and  that  he  is  not  bound  to  perform 
it.  The  bill  must,  therefore,  be  dis- 
missed, but  without  costs.  The  de- 
fendant has  failed  in  showing  the 
fraud,  which  he  set  up  in  his  answer, 
and  succeeds  on  a  ground,  which  is 
not  inconsistent  with   good  faith  on 

VOL.  II. — 44 


the  part  of  the  complainant,  in  mak- 
ing the  contract." 

The  right  of  the  defendant  to  resort 
to  parol  evidence,  as  a  defence  to  a  bill 
filed  to  enforce  the  performance  of  a 
written  contract,  was  also  held  or  con- 
ceded in  Letcher  v.  Cosby,  2  A.  K.  Mar- 
shall, 10(3;  Lucas  v.  Mitchell,  3  Id. 
24G ;  Wood  V.  Lee,  5  Monroe,  57 ; 
Bradhury  v.  White,  4  Greenleaf, 
391;  EatcliffY.  Alison,  3  Randolph, 
537;  Brooks  v.  Wheelock,  11  Pick. 
439;  Best  V.  Stow,  2  Sandford,  Ch. 
298;  Towner  v.  Lucas,  13  Grattan, 
705,  714;  Workman  v.  Guthrie,  5 
Casey,  495,  510 ;  and  Raffensherger  v. 
CuUison,  4  Id.  427.  And  in  Cathcart 
V.  Robinson,  5  Peters,  262,  the  de- 
fendant was  permitted  to  set  up  a  ver- 
bal stipulation  at  the  time  of  entering 
into  the  contract,  that  he  should  be 
permitted  to  abandon  it,  on  the  pay- 
ment of  a  sum  certain,  as  a  reason  why 
he  should  not  be  compelled  to  perform 
it  specifically. 

It  must  not,  however,  be  supposed 
that  because  the  defendant  in  a  suit 
for  specific  performance,  is  in  some 
respects,  a  favorite  with  the  court,  he 
is  entitled  to  disregard  the  ordinary 
rules  of  evidence.  He  is  free  from 
the  restraints  imposed  on  the  plaintiff 
by  the  Statute  of  Frauds,  but  he  is 
bound  by  the  general  rules  and  princi- 
ples of  evidence  which  prevail  alike  in 
law  and  equity.  In  suits  brought  to 
enforce  the  specific  performance  of  a 
written  contract,  parol  evidence  will, 
therefore^  be  inadmissible,  either  to 
vary  or  contradict  the  contract,  whe- 
ther offered  on  behalf  of  plaintiff"  or 
defendant,  unless  on  the  ground  of 
fraud  or  mistake,  if  not  in  the  forma- 
tion of  the  contract,  at  least  in  the  use 


G90 


SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 


subsequently  sought  to  be  made  of  it 
by  the  comphiinant;  Stontenhurgh  v. 
Tomphins,  1  Stockton,  oo2  ;  Feru^mc 
V.  Thorn,  1  Barb.  42.  And  the  cases 
of  Clows  V.  Higgimon ;  Croome  v. 
Lediard,  and  Ormcrod  v.  Ilardman, 
ante,  662,  663,  obviously  narrow  the 
right  of  a  defendant,  to  rely  on  parol 
evidence  as  a  defence,  in  cases  within 
the  statute,  to  the  limits  set  in  Lord 
Irnham  v.  Child,  to  the  admissibility 
of  such  evidence,  in  cases  without  the 
statute;  Sugden  on  Vendors,  vol.  1, 
p.  161.  ■  On  the  other  hand  it  must 
be  admitted,  that  the  cases  of  Clark  v. 
Grant,  and  Winch  v.  Winchester,  jus- 
tify the  idea,  that  the  court  will  not  pro- 
ceed to  enforce  the  contract  as  against 
a  defendant,  who  is  able  to  show  that 
it  varies  from  the  actual  agreement, 
although  that  variance  may  have  arisen 
neither  from  fraud  nor  mistake.  But 
there  can  be  no  doubt  that  to  entitle 
the  defendant  to  rely  on  a  verbal  stipu- 
lation, as  a  bar  to  the  performance  of 
a  written  contract,  it  must  distinctly 
appear  to  have  been  intended  to  be  a 
part  of  the  contract,  or  as  a  condition 
precedent  to  its  execution,  and  not  as 
a  mere  collateral  and  personal  under- 
taking ;  Ratcliffe  v.  Alison,  3  Ban- 
dolph^  537. 

It  has  already  been  stated,  that  the 
obstacle  in  the  way  of  enforcing  a 
specific  performance  of  a  written  con- 
tract as  varied  by  parol,  is,  that  in 
contemplation  of  law,  such  a  variation 
reduces  the  whole  contract  to  parol, 
and  thus  brings  it  within  the  scope  of 
the  Statute  of  Frauds.  And  this  rule, 
as  we  have  seen,  prevails  even  when 
the  imperfection  of  the  writing  is 
the  result  of  fraud  or  mistake,  and 
not  of  a  mere  want  of  fullness  or  cer- 
tainty in  its  terms.    In  this  case,  how- 


ever, as  in  that  of  contracts  purely  by 
parol,  the  plaintiif  may  still  succeed 
by  proving  a  part  performance,  which 
is  held  to  show  the  existence  of  a  con- 
tract, and  let  in  parol  evidence  as  to 
its  nature;  ante,  vol.  1.  Thus  it 
was  held  by  the  Court  of  Errors  in 
Parkhurst  v.  Van  Cortland,  14  John- 
son, 15,  reversing  the  decision  of  the 
chancellor  in  the  court  below,  (1  John- 
son, Ch.  273,)  that  where  a  vendee 
had  gone  into  possession  under  a  con- 
tract, he  might  make  out  the  terms  of 
the  whole  contract  by  parol,  and  could 
not  be  in  a  worse  position,  because 
part  of  it  was  reduced  to  writing. 
So  in  the  analogous  case  of  a  trust, 
arising  on  a  deed,  absolute  on  its  face, 
the  existence  of  the  trust  cannot  be 
shown  without  writing,  but  if  proved 
to  exist  by  written  evidence,  it  may 
be  ascertained  and  defined  by  parol ; 
Cripps  V.  Jee,  4  Brown,  C.  C.  472. 

We  have  seen  that  when  the  parties 
agree  that  the  contract  shall  be  written, 
both  law  and  equity  will  presume  that 
the  writing  contains  the  contract,  and 
will  refuse  to  allow  it  to  be  varied  by 
extrinsic  evidence.  This  presump- 
tion, however,  is  necessarily  confined 
to  the  contract  as  it  existed  at  the 
time  when  the  writing  was  executed, 
and  cannot  apply  to  subsequent 
changes  or  modifications.  Hence  it 
is  well  settled,  that  an  executory  writ- 
ten contract  may  be  varied  or  rescind- 
ed at  any  time  before  breach,  by  a 
subsequent  oral  agreement,  and  that 
the  change  may  be  proved  by  the  tes- 
timony of  witnesses  without  the  aid  of 
a  writing;  Foster  v.  Daiclcr,  6  Exche- 
quer, 839  ;  Stead  v.  Dawhcr,  10  A.  & 
E.  57 ;  1  Smith's  Leading  Cases,  462, 
5th  cd.  When,  however,  a  writing  is 
made  necessary  by  statute  to  the  vali- 


W  0  0  L  L  A  M     V.      H  E  A  R  N. 


691 


dity  of  a  contract,  it  cannot  be  varied 
by  any  means  of  less  authenticity ;  be- 
cause every  modification  of  a  pre-exist- 
ing contract,  is  virtually  a  new  agree- 
ment. It  has  accordingly  been  held, 
that  an  agreement  for  the  purchase  or 
sale  of  land  cannot  be  rescinded  or 
varied  subsequently  without  the  aid  of 
a  writing,  and  that  every  attempt  to 
subject  it  to  a  mere  oral  modification, 
will  fall  directly  within  the  provisions 
of  the  Statute  of  Frauds,  and  will, 
consequently,  fail  to  take  effect  or 
operate  on  the  estate  in  the  land ; 
Goxiclier  V.  Martin,  9  Watts,  106; 
Espy  V.  Anderson,  2  Harris,  308 ; 
Cravener  v.  Bowser,  4  Barr,  259 ;  1 
Smith's  Leading  Cases,  463,  5th  Am. 
ed. ;  Moore  v.  Camplell,  10  Exche- 
quer, 325 ;  Goss  v.  Lord  N^ugent,  5 
B.  &  Ad.  58;  Stead  v.  Dawher.  A 
different  view  is  taken  in  some  of  the 
cases,  which  decide  that  an  oral  modi- 
fication may  be  binding  even  when  the 
original  agreement  would  have  been 
invalid  unless  reduced  to  writing; 
Cuff  v.  Penn,  1  M.  &  S.  21 ;  Cum- 
mings  v.  Arnold,  3  Metcalf,  486 ;  and 
these  decisions  were  followed  by  the 
Supreme  Court  of  Massachusetts,  in 
the  recent  case  of  Stearns  v.  ITaU,  9 
Gushing,  31.  But  the  weight  both 
of  authority  and  reason  is,  however, 
on  the  opposite  side  of  the  question, 
and  in  favor  of  the  proposition,  that 
when  a  writing  is  necessary  by  statute 
to  the  validity  of  a  contract  relating 
to  or  about  a  specific  subject-matter, 
a  subsequent  variation  is  as  much 
within  the  letter  and  spirit  of  the  en- 
actment as  if  it  formed  part  of  the 
original  agreement,  for  otherwise,  no 
line  of  demarcation  could  be  drawn, 
and  the  whole  might  ultimately  de- 
pend on  oral  testimony.     It  has  ac- 


cordingly been  held  in  a  number  of  in- 
stances, that  an  oral  modification  of  a 
prior  written  contract  for  the  sale  of 
land,  is  inoperative  both  in  law  and  in 
equity;  and  that  those  who  seek  to 
enforce  the  contract,  must  accept  it 
in  its  original  form,  or  relinquish  all 
right  to  performance;  Sugden  on  Ven- 
dors, 146,  151,  9th  ed. ;  Frke  v. 
Dyer,  17  Vesey,  356,  364;  Brooks  v. 
ThuloeJc,  11  Pick..  439;  Stevens  v. 
Cooper,  1  Johnson,  Ch.  425,  430; 
ante,  vol.  1;  unless- the  variation  has 
been  so  far  executed  or  acted  upon, 
as  to  give  rise  to  a  new  equity,  and 
thus  fall  within  the  principles  under 
which  chancery  enforces  the  perform- 
ance of  oral  agreements ;  ante,  742. 
But  while  this  rule  applies  with  full 
force  when  the  modification  ia  set  up 
by  the  plaintiff,  a  distinction  exists 
in  favor  of  the  defendant,  who  is,  as 
we  have  seen,  entitled  to  give  every- 
thing in  evidence,  which  tends  to 
show  that  the  prayer  of  the  bill  is  ine- 
quitable, and  cannot  be  accorded  con- 
sistently with  good  faith,  and  fair  deal- 
ing; Boyer  v.  MCuUocli,  3  W.  &  S. 
429 ;  Workman  v.  Guthrie,  5  Casey, 
495,  510  ;  Raffensherger  v.  Cullison, 
4  Id.  426 ;  ante,  659.  It  is  accord- 
ingly well  settled,  that  an  oral  varia- 
tion, which  has  been  acted  upon,  or 
which  has  led  either  party  into  a  posi- 
tion where  he  would  be  a  loser  if  the 
contract  were  to  be  enforced  in  its 
original  form,  will  compel  the  other 
to  elect  between  the  adoption  and  rati- 
fication of  the  change  thus  made,  and 
resigning  all  claim  to  a  specific  per- 
formance ;  Legal  v.  Miller,  2  Vesey, 
299;  Price  v.  Dyer,  ante,  vol.  1. 
Proof  that  the  contract  has  been  re- 
scinded or  abandoned  in  pais  or  by 
parol,  will,  consequently,  justify  a  re- 


692 


SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 


fusal  to  enforce  it  specifically,  when- 
ever the  circumstances  are  such  as  to 
give  rise  to  an  equity  in  favor  of  the 
defendant,  or  to  render  the  claim  of 
the  plaintiff  unjust  and  oppressive; 
Boyer  v.  MCuliocli,Z  W.  &  S.  429; 
Onrj  V.  Camphell,  6  Watts,  392; 
J/'  Corkle  V.  Broion,  9  Smedes  &  Mar- 
shall, 167;  Tolson  v.  Tohon,  10  Mis- 
souri, 736. 

Principle,  however,  would  seem  to 
require,  that  a  subsequent  oral  agree- 
ment, standing  by  itself  and  apart 
from  any  special  equity,  should  be 
equally  null,  whether  adduced  on  be- 
half of  the  defendant  or  of  the  plain- 
tiff; Sugden  on  Vendors,  vol.  1,  9th 
ed.  In  Goucher  v.  3Iartin,  9  Watts, 
106 ;  and  Cravener  v.  Bowser,  4  Barr, 
259,  this  view  was  adopted  by  the 
Supreme  Court  of  Pennsylvania,  and 
held  to  preclude  a  vendor  from  rebut- 
ting the  equity  of  the  vendee  against 
whom  he  had  brought  ejectment,  by 
proof  that  the  contract  had  been  re- 
scinded by  parol  after  the  vendee  had 
gone  into  possession.  A  vendor  who 
seeks  to  enforce  his  legal  title  by  eject- 
ment against  the  purchaser,  holds  the 
same  position  in  a  court  of  law,  in 
Pennsylvania,  as  the  defendant  in  a 
bill  for  specific  performance  in  chan- 
cery, and  those  decisions  are,  conse- 
quently, directly  to  the  point  that  a 
naked  oral  agreement  cannot  operate 
as  a  bar  to  the  execution  of  a  written 
contract  where  land  is  in  question.  A 
distinction  has,  however,  been  taken 
in  some  of  the  cases,  between  entire 
rescission  and  a  mere  modification ; 
and  it  has  been  said  that  tho  former 
may  have  a  weight  which  should  bo 
entirely  denied  to  the  latter,  and  may 
operate  as  a  bar  to  a  specific  perform- 
ance, even  when  it  has  not  been  acted 


upon,  and  consists  in  a  mere  oral  agree- 
ment; Gorman\ . Salisbury ,  IVernon, 
240 ;  Price  v.  Dyer;  Boyce  v.  J/'  Cul- 
JoiigJi;  Raffensherger  v.  Ctdlison,  4 
Casey,  427 ;  Worhman  v.  Guthrie,  5 
Id.  495,  509.  In  most  of  these  in- 
stances, however,  the  agreement  to 
rescind  derived  a  force  from  attendant 
acts  and  circumstances,  which  it  might 
have  wanted  had  it  stood  on  its  ori- 
ginal footing,  and  they  are,  conse- 
quently, hardly  sufficient  to  countervail 
the  doubts  expressed  by  Sugden,  and 
the  authority  of  Goucher  v.  Martin. 
Thus,  in  Boyce  v.  3I^Culloiigh,  the 
land  had  been  resold,  and  conveyed  to 
a  subsequent  purchaser,  who  either 
bought  without  notice  of  the  prior 
sale,  or  in  reliance  upon  the  agree- 
ment for  its  rescission;  and  in  either 
case  had  a  paramount  equity  to  that 
of  the  first  purchaser.  In  Raffens- 
herger V.  Cullison,  the  rescission  of 
the  contract,  was  followed  by  a  resale 
to  a  third  person  who  went  into  posses- 
sion and  paid  the  purchase-money,  in 
the  full  belief  that  the  rights  of  the 
first  purchaser  were  at  an  end,  and  as  it 
would  seem,  with  the  knowledge  and 
acquiescence  of  the  latter,  thus  bring- 
ing the  case  within  the  well  settled 
rule,  that  he  who  induces  or  even 
knowingly  permits  another  to  buy, 
cannot  call  his  title  in  question  subse- 
quently;  ante,  64.  The  same  remark 
applies,  with  still  more  force,  to  Work- 
man V.  Guthrie,  while  the  decision  in 
Price  V.  Pyer,  simply  establishes  that 
an  oral  modification  of  a  written  agree- 
ment for  the  sale  of  land,  is  equally  in- 
operative whether  adduced  by  the 
plaintiff  or  defendant;  although  the 
court  seem  to  have  inclined  to  the 
opinion  than  an  entire  waiver  or  aban- 
donment of  all  right  under  the  sale, 


WOOLLAM     V.     HEARN. 


693 


might  have  been  been  more  effectual. 
And  whatever  the  effect  of  an  oral  res- 
cission may  be,  while  the  prior  agree- 
ment is  still  executory,  it  would  seem 
to  be  wholly  nugatory  after  the  vendee 
has  gone  into  possession,  and  thus  ac- 
quired a  vested  estate  or  interest  which 
the  statute  will  not  suffer  him  to  be 
deprived  of  by  proof  which  falls  short 
of  the  accuracy  and  credibility  that 
belong  to  written  evidence.  "  When," 
said  Rogers,  J.,  in  Goucher  v.  llartin, 
9  Watts,  106,  111,  "  the  contract  is  in 
part  executed,  and  the  purchaser  be- 
comes seised  of  an  estate  in  the  land, 
I  hold  it  to  be  a  very  clear  proposi- 
tion that  he  cannot  be  deprived  of  his 
estate  on  the  pretext  that  the  agree- 
ment has  been  waived  by  a  parol  con- 
tract." And  he  went  on  to  say  that 
even  if  an  absolute  waiver  would  ope- 
rate as  a  bar  to  a  specific  performance, 
that  effect  could  not  be  ascribed  to  an 
agreement  to  repurchase  on  specific 
terms  and  conditions,  which  could  not 
be  proved  by  oral  testimony,  without 
a  plain  disregard  of  the  provisions  of 
the  statutes,  which  render  a  writing 
necessary.  The  better  opinion  would, 
on  the  whole,  seem  to  be,  that  an  oral 
agreement  cannot  take  away  the  rights 
given  by  a  written  contract,  unless 
the  position  of  the  parties  is  shown  to 
have  been  changed  in  consequence  of 
the  agreement,  or  unless  the  lapse  of 
time  has  been  such  as  to  entitle  the 
court  to  presume  that  such  a  change 
has  occurred  in  the  absence  of  proof 
that  it  has  actually  happened. 

It  may  indeed  be  said,  that  there  is 
nothing  in  the  rules  of  evidence  to 
preclude  an  oral  modification  of  a  writ- 
ten contract,  and  that  the  only  obstacle 
lies  in  the  provisions  of  the  Statute  of 
Frauds,  which  have  been  held  to  ap- 


ply only  when  the  rights  of  the  party 
sought  to  be  charged  are  in  question, 
and  to  permit  a  resort  to  every  species 
of  proof,  which  may  conduce  to  show 
that  the  writing  relied  on  by  the  com- 
plainant, does  not  contain  or  express 
the  whole  agreement,  or  that  the 
agreement  differs  materially  from  the 
writing.  It  should,  however,  be  re- 
membered, that  a  written  contract  for 
the  purchase  and  sale  of  land,  passes 
an  estate,  and  confers  vested  rights  in 
equity  from  the  moment  of  its  execu- 
tion, whatever  may  be  its  effect  at  law; 
post,  note  to  Sefon  v.  Slade,  and  that 
these  rights  cannot  be  divested,  sub- 
sequently, by  any  unwritten  agree- 
ment, without  a  departure  from  the 
policy,  and  a  disregard  of  the  express 
words  of  the  statute.  A  resale  ob- 
viously stands  on  the  same  footing, 
and  has  the  same  effect  in  passing  an 
estate  in  the  land,  as  a  sale,  and  a  rescis  - 
sion  of  an  agreement  to  sell  after,  if 
not  before  it  has  been  followed  by  pos- 
session, can  hardly  be  distinguished, 
either  in  fact  or  law,  from  a  resale. 

Although  equity  cannot  give  effect 
to  a  subsequent  oral  modification  of  a 
written  contract,  at  the  suit  of  a  plain- 
tiff under  ordinary  circumstances,  un- 
less it  has  been  specifically  executed 
by  a  corresponding  change  of  posses- 
sion ;  ante,  vol.  1,  741 ;  it  would  seem 
that  a  defendant  should  not  be  al- 
lowed to  set  up  a  default  or  omission, 
which  has  been  occasioned  by  a  reli- 
ance upon  his  own  acts  or  declarations, 
as  a  bar  to  a  decree  for  a  specific  per- 
formance; and  this  would  appear  to 
have  been  the  only  point  actually  de- 
termined in  Stearns  v.  Hall,  9  Gush- 
ing, 31,  and  other  cases  of  the  same 
description ;  ante,  although  the  lan- 
guage of  the  court  undoubtedly  goes 


694 


SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 


further  ia  many  of  them,  and  to  the 
point,  that  the  rule  which  permits 
written  agreements  to  be  varied  by 
parol,  is  not  altered  or  aiFected  by  the 
provisions  of  the  Statute  of  Frauds. 
The  difference  between  a  variation  of 
the  contract,  and  the  waiver  of  an  act 
required  by  its  terms,  is  great  and  ob. 
vious  :  the  former  amounting  to  a  new 
contract,  and  falling  within  the  rules 
by  which  contracts  are  governed; 
Brooks  V.  Wheelock,  11  Pick.  439  ; 
while  the  latter  partakes  of  the  nature 
of  a  license,  and  being  essentially  re- 
vocable, works  no  change  in  the  future 
rights  and  obligations  of  the  parties ; 
although  a  complete  justification  for 
every  thing  done  or  omitted  in  the 
past  or  present,  while  it  is  still  unre- 
voked, and  on  the  faith  of  tlie  permis- 
sion which  it  accords ;  Peirepoint  v. 
Barnard,  5  Barbour,  o64 ;  2  Selden, 
279 ;  2  American  Leading  Cases,  4th 
ed.  774;  M' Combs  v.  M'Kennan,  2 
W.  &  S.  216;  Devlin;^  y.  Little,  2 
Casey,  502. 

It  is  a  matter  of  some  nicety  to 
determine,  when  evidence  of  a  parol 
variation  of  the  contract,  will  deprive 
the  plaintiff  of  all  claim  to  a  specific 
performance,  or  merely  put  him  to  his 
election  between  a  dismissal  of  the 
bill,  and  the  performance  of  the  con- 
tract as  varied.  It  is  well  settled  that 
a  plaintiff  cannot  set  up  one  contract 
in  the  pleadings,  and  recover  upon 
another  on  the  proofs;  Allni  v. 
Burke,  2  Maryland  Ch.  534 ;  Sims  v. 
MEwen,  27  Alabama,  184.  When, 
therefore,  the  parol  evidence  given  by 
the  defendant,  varies  the  substance  of 
the  contract  set  forth  by  the  plaintiff, 
there  can  be  no  recovery  without  an 
amendment  of  the  bill ;  Harris  v. 
Knickerhacher,  5  Wend.  638;    Bel- 


loics  v.  Stone,  14  New  Hampshire, 
175;  Craige  v.  Craigc,  6  Iredell,  Eq. 
191 ;  Phillips  V.  Thompson,  1  John- 
son, Ch.  131,  146  ;  Hoxie  v,  Carr,  1 
Sumner,  173  ;  Parrish  v.  Koons,  Par- 
sons' Equity  Cases,  79;  Forsi/th  v. 
Clark,  3  Wend.  637 ;  Simms  v. 
MEioen,  27  Alabama,  184.  And  the 
better  opinion  seems  to  be,  that  a  spe- 
cific performance  cannot  be  decreed 
even  after  amendment,  if  the  defend- 
ant, while  disproving  the  plaintiff's 
contract  as  to  part,  denies  it  as  to  the 
residue  ;  (^The  Marquis  of  Totvnshend 
V.  Stangroom,  6  Vesey,  328,)  or  even 
where  he  admits  it,  and  relies  on  the 
Statute  of  Frauds ;  Harris  v.  Knicker- 
hacker,  5  Wend.  638 ;  Hamilton  v. 
Jones,  3  Gill  &  Johns.  127;  Thomp- 
son V.  Tod,  1  Peters,  C.  C  R.  380. 
The  court  is  moreover,  disinclined  to 
allow  a  plaintiff  to  take  his  chance  of 
establishing  a  contract,  which  ought 
not  to  be  established,  and  then,  after 
failing  in  that,  to  turn  round  and  in- 
sist on  the  performance  of  a  different 
contract,  set  up  and  proved  by  the  de- 
fendant; Clones  V.  Higginson,  1  Ves. 
&  Beames,  524.  But  if  the  variation 
proved  by  the  defendant  be  collateral, 
and  does  not  affect  the  substance  of 
the  contract,  it  will  not  operate  as  a 
peremptory  bar  to  the  bill,  although 
the  plaintiff  will  be  compelled  to  ac- 
cept it,  as  the  condition  of  a  decree 
for  performance,  on  the  ground  that 
he  who  seeks  equity  must  do  it; 
Ramshottom  v.  Gosdcn,  1  Vesey  & 
Beames,  165;  The  London  Raihoay 
Co.  V.  ^Vinter,  1  Craig  &  Phillips, 
57.  When,  however,  both  plaintiff 
and  defendant,  have  expressly  or  by 
implication,  assented  in  the  plead- 
ings, to  the  execution  of  the  contract 
set  up    by  the  defendant,  the  court 


W  0  0  L  L  A  M     V.     11 E  A  R  N. 


695 


will  give  effect  to  their  mutual  ad- 
missions by  its  decree,  eveu  as  it 
would  seem,  notwithstanding  a  sub- 
sequent attempt  at  retraction  ;  Spur- 
rier V.  Fitzgerald,  6  Vesey,  548.  The 
proper  course,  therefore,  for  the  com- 
plainant is  to  couple  the  allegation  of 
the  contract,  as  set  forth  or  shown  by 
the  writing,  with  an  offer  to  give  effect 
to  any  oral  stipulation  by  which  it  may 
have  been  attended  in  the  first  in- 
stance, or  modified  subsequently,  if 
the  defendant  shall  require  it,  when 
the  latter  will  be  compelled  to  elect 
between  the  alternatives  thus  pre- 
sented to  him,  and  a  specific  perform- 
ance decreed  in  accordance  with  his 
election,  when  made  ;  Martin  v.  Py- 
croft,  11  Eng.  Law  &  Eq.  110  ;  15 
Id.  376 ;  Jones  v.  Hazard,  4  Rhode 
Island,  14.  The  recent  cases  oi Brad- 
ford \.  The  Union  Bank  of  Terinessee, 
13  Howard,  57,  and  Wallaces.  Brown, 
2  Stockton,  Ch.  308,  go  still  farther 
in  the  same  direction,  and  hold  that 
the  complainant  may  have  a  decree  for 
the  specific  performance  of  the  agree- 
ment, as  set  forth  in  the  answer,  al- 
though varying  from  that  set  up  in 
the  bill,  if  the  mistake,  which  consti- 
tuted the  difference  between  them,  is 
limited  to  part  of  the  contract,  and  does 
not  render  it  less  equitable  to  enforce 
the  residue.  This  course  may,  per- 
haps, be  less  technical,  but  is  obvi- 
ously better  calculated  to  prevent  de- 
lay, and  diminish  the  expense  of  liti- 
gation. 

It  has  been  stated  above,  that  a  de- 
fendant, in  a  bill  brought  to  enforce 
a  specific  performance,  is  not  exempt- 
ed from  the  ordinary  rules  of  evidence, 
nor  entitled  to  vary  a  written  contract 
by  parol,  without  showing  fraud  or 
mistake  to  justify  the  variation.    But 


it  is  equally  well  settled,  that  speci- 
fic performance  is  discretionary  with 
courts  of  equity;  Tohi/  v.  Bristol,  8 
Story,  800 ;  and  the  defendant  will 
generally  succeed  in  procuring  a  dis- 
missal of  the  bill,  if  he  can  convince 
the  court  that  the  exercise  of  their 
jurisdiction  will  be  inequitable  under 
the  circumstances;  Blackwilder  v. 
Loveless,  21  Alabama,  371 ;  Tlte  West- 
ern R.  R.  Corporation  v.  BahcocJc,  6 
Metcalf,  346;  King  v.  Ilumillon,  4 
Peters,  311;  Leigh  v.  Crump,  1  Ire- 
dell, Equity,  299  ;  Lloyd  v.  Wheat- 
ley,  2  Jones,  Equity,  267 ;  Ellis  v. 
Burden,  1  Alabama,  458;  Fitzpatrich 
V.  Beatty,  1  Gilman,  454;  St.  John, 
V.  Benedict,  lb.  Ill  ;  Seymour  v. 
Delancey,  6  Johnson,  Ch.  222 ;  Mat- 
thews V.  Terwilliger,  3  Barbour,  S.  C. 
50;  Perkins  v.  Wright,  3  Harris  & 
M'Henry,  324;  Simmons  v.  Hill,  4 
Id.  258  ;  Rogers  v.  Saunders,  16 
Maine,  92 ;  Torry  v.  Buck,  1  Grreen, 
Ch.  366;  Henderson  v.  Hays,  2  Watts, 
148 ;  Frishy  v.  Ballance,  4  Scammon, 
287  ;  Gould  v.  Womack,  2  Alabama, 
83 ;  Casey  v.  Holmes,  10  Id.  776 ; 
Pennock  v.  Freeman,  1  Watts,  408 ; 
Dalzell  V.  Crawford,  Parsons'  Equity 
Cases,  37 ;  Stoutenhurgh  v.  Tump- 
kins,  1  Stockton,  332 ;  Clarke  v.  The 
Rochester  Rail  Road  Co.,  18  Barbour, 
350;  The  Canterbury  Aqueduct  Co. 
V.  Ensworth,  22  Conn.  608.  The  dis- 
cretion of  the  court  must,  notwith- 
standing, be  exercised  in  this  respect 
as  in  others,  in  accordance  with  prin- 
ciples, not  arbitrarily  or  capriciously ; 
Seymour  v.  Delancey,  3  Cowen,  223; 
Ash  v.  Daggy,  6  Indiana,  259.  Whe- 
ther evidence  tending  to  vary  or  con- 
tradict the  written  contract,  can  be 
introduced  on  the  ground  of  an  ap- 
peal to  this  judicial  discretion,  when 


696 


SPECIFIC  PERFORM  AX  CE.  —  PAROL  EVIDENCE. 


it  would  not  be  admissible  on  other 
grounds,  Las  been  stated  to  be  a  moot 
point.  But  there  are,  boyond  doubt, 
a  variety  of  collateral  circumstances, 
wbicli  maybe  urged  as  reasons  against 
a  specific  performance,  without  con- 
tradicting or  varying  the  contract,  and 
which  derive  their  chief  weight  from 
the  peculiar  nature  of  the  remedy  or 
jurisdiction,  and  would  have  little  in- 
fluence in  any  other  form  of  proceed- 
ing. It  is,  however,  somewhat  diffi- 
cult to  bring  these  circumstances  with- 
in any  systematic  classification. 

In  the  absence  of  fraud  and  undue 
influence,  inadequacy  of  consideration, 
is  neither  a  ground  for  annulling  a  con- 
tract in  equity,  nor  for  refusing  a  re- 
covery upon  it  at  law ;  Eyre  v.  Pot- 
ter^ 15  Howard,  42;  Ayres  v.  Banm- 
garten,  15  Illinois,  444;  but  has, 
however,  been  held  in  some  instances, 
a  sufficient  reason  for  refusing  a  de- 
cree for  a  specific  performance  ;  Cli- 
tlierall  v.  0<jilvie,  1  Dessaussure,  257; 
Gasqne  v.  Small,  2  Strobhart,  Equi- 
ty, 72 ;  Osgood  v.  FranJclin,  2  John- 
son, Ch.  2.3;  14  Johnson,  527;  Cle- 
ments V.  Reid,  9  Smedes  &  Marshall, 
535;  Byers  v.  Surget,  19  Howard, 
308 ;  Benton  v.  Shreeve,  4  Indiana, 
66.  But  it  has  been  held  in  others, 
that  as  mere  inadequacy  of  conside- 
ration, neither  impairs  the  obligation 
of  the  defendant  to  perform  the  con- 
tract, nor  the  right  of  the  plaintiff"  to 
have  it  performed,  it  can  aff'ord  no 
reason  why  that  obligation  should  not 
be  specifically  enforced  in  equity; 
Crocker  v.  Young,  Ilice,  30 ;  Sey- 
mour V.  Delancy,  6  Johnson,  Ch. 
222 ;  3  Cowen,  445  ;  Sarter  v.  Gor- 
don, 2  Hill,  Ch.  121 ;  Frlpp  v.  Fr{2yp, 
1  rriec,  84 ;  The  Western  R.  R.  Cor- 
poration v.  Bahcoch,  6  Metcalf,  340; 


Burtch  V.  Hogge,  Harrington,  Ch.  31 ; 
Harrison  v.  Town,  17  Missouri,  237; 
Bealv.  Yallee,  12  Id.  126;  F«We  v. 
The  Troy  &  Boston  Rail  Road,  21 
Barbour,  381.  And  there  can  be  no 
doubt,  that  where  the  inadequacy  of 
the  consideration  is  explained  by  the 
relations  subsisting  between  the  par- 
ties, as  in  the  case  of  contracts  found- 
ed partly  on  good  and  partly  on  valu- 
able consideration,  equity  will  decree 
a  specific  performance ;  ( White  v. 
Thompson,  1  Dev.  &  Bat.  Equity, 
493;  Shepherd  v.  Berin,  9  Gill, 
32;  4  Maryland  Ch.  133;  Haines  v. 
Haines,  6  Maryland,  435;)  unless 
there  are  circumstances  tending  to 
show  undue  influence,  when  nearness 
of  relation,  coupled  with  inadequacy 
of  price,  may  become  a  reason,  not 
only  for  refusing  to  execute  the  con- 
tract, but  for  setting  it  aside  when 
executed ;  Wheelan  v.  Wheelan,  3 
Cowen,  537. 

The  eff"ect  of  inadequacy  of  consi- 
deration on  the  right  to  specific  per- 
formance, was  much  considered  in  the 
case  of  Seymour  v.  JDelancy,  6  John- 
sou,  Ch.  222;  3  Cowen,  445.  Itwas 
held  by  the  chancellor  in  the  court 
below,  that  mere  inadequacy  of  price, 
apart  from  fraud,  may  be  a  sufficient 
reason  for  refusing  to  enforce  a  con- 
tract specifically,  and  will  be  so  when 
there  is  reason  to  suppose,  that  it  has 
resulted  from  the  impaired  mental 
condition  of  the  defendant,  although 
not  amoixnting  to  imbecility  or  lunacy. 
This  decision  was  subsequently  re- 
versed by  the  votes  of  a  majority  of 
the  senators  in  the  Court  of  Errors, 
in  opposition  to  the  opinion  of  the 
chief  justice,  who  concurred  with  the 
chancellor.  But  the  inadequacy  of 
price  was  not  so  great  in  this  instance. 


WOOLLAM     V.     HEARN. 


697 


as  to  raise  a  presumption  against  the 
good  faith  of  the  purchaser,  or  render 
the  bargain  hard  and  unconscientious; 
nor  was  it  denied,  that  where  such  is 
the  case,  equity  will  refuse  a  specific 
performance.  In  Gasque  v.  Small, 
2  Strobhart,  Equity,  72,  the  court  re- 
fused to  decree  a  specific  performance 
of  a  contract  for  the  sale  of  land  to  a 
young  man  just  of  age,  for  more  than 
twice  its  value,  and  said  that  it  was 
not  necessary  that  the  inadequacy 
should  be  so  great  as  to  imply  fraud, 
and  that  it  was  enough  that  the  bar- 
gain was  hard  and  unconscionable; 
and  the  recent  case  oi  Bi/ers  v.  Surget, 
19  Howard,  303,  tends  to  support  the 
same  proposition.  When,  however, 
the  presumption  of  hardship  or  undue 
advantage,  is  rebutted  by  showing 
that  the  inadequacy  was  known  to  the 
purchaser  at  the  time,  and  was  over- 
looked by  him  from  motives  of  gene- 
rosity, he  cannot  set  it  up  as  a  bar  to 
the  performance  of  the  contract  sub- 
sequently ;  FrqyjJ  v.  Frijyp,  1  Rice, 
84.  The  unfavorable  inference  which 
might  otherwise  be  drawn  from  a  gross 
disproportion  between  price  and  value, 
may  also  be  done  away  with,  by  proof 
that  both  parties  were  well  acquainted 
with  the  worth  of  the  property,  and 
entered  into  the  contract  with  their 
eyes  open,  or  that  the  relation  in  which 
they  stood  to  each  other,  was  such  as 
to  render  it  probable  that  the  convey- 
ance or  conti-act  was  intended  as  a  gift 
or  benefit,  and  should  not  be  viewed 
as  a  mere  business  transaction  ;  JShep- 
Jierd  V.  Bevin,  9  Gill,  32 ;  4  Mary- 
land Ch.  133;  Haines  v.  Haines,  6 
Maryland,  435.  Whatever  weight 
may  be  due  to  inadequacy  of  conside- 
ration when  standing  alone,  it  will 
undoubtedly  be  material  when  coupled 


with  other  circumstances ;  Catlicart 
V.  Robinson,  5  Peters,  264  ;  Hender- 
son V.  Hai/s,  2  Watts,  148.  Intoxi- 
cation and  inadequacy  of  price  are, 
when  taken  together,  suSicient  to  in- 
validate a  contract  on  the  ground  of 
fraud,  although  neither  might  have 
that  effect  when  standing  alone ;  Hei/- 
owlds  V.  Wall,  1  Washington,  164. 
In  Camphell  v.  Spencer,  2  Binney, 
133,  where  a  farmer  was  induced  to 
come  into  a  tavern  and  drink,  and  while 
there  exchanged  his  farm  for  the  stock 
in  trade  of  a  shop  keeper,  who  refus- 
ed to  rescind  the  contract,  although 
earnestly  entreated  by  the  other  soon 
after  it  was  made ;  it  was  held,  that 
even  if  the  sale  was  not  the  result  of 
fraud  in  the  buyer,  or  intoxication  in 
the  seller,  it  was  unjust  and  oppres- 
sive, and  such  as  ought  not  to  be  en- 
forced in  point  of  good  morals.  It 
was  remarked  with  great  force  in  sup- 
port of  this  decision,  that  if  the  plain- 
tiff were  left  to  his  remedy  in  damages, 
the  jury  would  take  all  the  circum- 
stances into  consideration,  and  that 
injustice  would  result  if  they  were 
left  out  of  view  by  a  court  of  equity. 
There  can  be  little  doubt,  that  the 
view  thus  taken,  is  fully  justified  by 
the  general  principles  which  pervade 
the  whole  course  of  equitable  juris- 
diction. 

Intoxication  carried  so  far  as  to  de- 
stroy the  reasoning  faculties,  would 
seem  to  destroy  the  validity  of  every 
contract  made  by  the  party  intoxicat- 
ed, by  depriving  him  of  the  power  of 
giving  his  assent  to  the  contract,  and 
rendering  it  a  fraud  in  the  other  party 
to  attempt  to  obtain  it ;  Donelson's 
Adm'r  v.  Posey,  13  Alabama,  752  ; 
Prentice  v.  Achorn,  2  Paige,  30.  It 
has,  notwithstanding,  been  held,  in 


698 


SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 


some  of  the  cases,  tliat  intoxication, 
however  complete,  is  not  a  ground  for 
rescinding  a  contract,  or  even  refusing 
to  decree  its  specific  performance,  un- 
less there  is  something  to  show  either 
that  undue  influence  has  been  used  to 
produce  the  intoxication,  or  that  un- 
due advantage  has  been  taken  of  it 
when  produced;  Pittinger's  Adm'r 
V.  Pittinger,  2  Green,  Ch.  156;  Hut- 
chinson V.  TindaU,  lb.  357.  If,  how- 
ever, it  can  be  shown,  that  one  party 
was  induced  to  drink  through  the  con- 
trivance of  the  other,  or  that  the  lat- 
ter took  advantage  of  his  condition  to 
obtain  his  assent  to  a  hard  and  disad- 
vantageous bargain,  equity  will  inter- 
vene to  set  aside  the  contract ;  Crane 
V.  ConJdln,  Saxton,  346 ;  Motchkiss 
v.  Fortson,  7  Yerger,  67 ;  Rejjnolds 
V.  TFa^^er,!  "Washington,  164;  and  will 
therefore  refuse  its  aid  to  enforce  it ; 
CampheU  v.  SjJencer,  2  Binney,  133. 
Imbecility  or  weakness  of  mind,  pro- 
duced by  habitual  intoxication,  or  re- 
sulting from  any  other  cause,  may 
furnish  a  determining  circumstance 
against  a  decree  for  specific  perform- 
ance, but  will  not  justify  a  refusal  to 
enforce  the  contract,  unless  going  so 
far  as  to  render  the  party  incompetent 
to  contract  for  any  purpose  whatever; 
Seymour  v.  Delancy,  6  Johnson,  Ch. 
223  ;  3  Cowen,  445  ;  Greer  v.  Greer, 
9  Grattan,  330;  Stewart  v.  Lispenard, 
26  Wend.  255.  But  in  this  case,  as 
in  that  of  actual  intoxication  at  the 
time  of  the  contract,  equity  will  re- 
fuse its  assistance  to  enforce  the  con- 
tract, unless  it  is  perfectly  fair  and 
equal  in  itself,  and  unattended  in  its 
consequences  with  any  circumstances 
of  injustice  or  hardship;  Ilendcrson 
v.  i/r/ys,  2  Watts,  148. 

A  mutual  mistake,  extending  to  the 


substance  of  a  contract,  renders  it  in- 
valid, and  of  course  takes  away  all 
ground  for  a  specific  performance ; 
Schmidt  V.  Livingston,  3  Edward, 
Ch.  213 ;  Bowen  v.  Waters,  2  Paine, 
C.  C.  II.  1.  But  except  in  cases  of 
insurance,  parol  representations,  made 
at  the  time  of  entering  into  a  contract, 
do  not  form  part  of  its  substance,  and 
therefore,  do  not  vitiate  it  when  un- 
true in  fact,  unless  shown  to  be  wil- 
fully false  or  fraudulent.  Where, 
however,  the  suit  is  brought  for  a  spe- 
cific performance,  the  representations 
of  the  parties  will  be  regarded  as  so 
far  of  the  substance  of  the  contract, 
as  to  justify  the  refusal  of  a  decree 
for  the  plaintifi",  on  the  ground  of  mis- 
take even  in  the  absence  of  fraud. 
Thus  it  was  held  in  Best  v.  Stow,  2 
Sandford,  Ch.  298,  that  where  the 
vendor  represented  land  lying  in  one 
county  as  situated  in  another,  he  could 
not  compel  a  specific  performance,  al- 
though the  misrepresentation  was  the 
result  of  mistake,  and  formed  no  part 
of  the  written  contract. 

Equity  will  not,  however,  refuse  to 
decree  a  specific  performance,  on  the 
ground  of  a  mistake  as  to  the  quality, 
or  even  the  value  of  that  which  is 
purchased,  if  the  mistake  be  one  which 
admits  of  compensation.  Thus,  where 
the  mistake  is  in  supposing  the  quan- 
tity greater  than  it  actually  proves,  a 
specific  performance  will  in  general 
be  decreed,  and  the  deficiency  com- 
pensated by  a  corresponding  abate- 
ment of  price,  corresponding  to  the 
deficiency;  Voorhees  v.  De  31eyer,  2 
Barbour,  S.  C.  37.  Th«  court  will  in 
general,  go  as  far  as  it  can,  in  accom- 
modating the  relief  to  the  circum- 
stances of  the  case,  and  will  even  en- 
force the  agreement  in  a  modified  form, 


■WOOLLAM     V.     HEARN. 


699 


when  it  can  no  longer  be  executed  in 
its  original  shape ;  Pratt  v.  Caroll,  8 
Cranch,  47 ;  M'  Corkle  v.  Brown,  9 
Smedes  &  Marshall,  167.     But  it  will 
not    decree    a   specific    performance, 
where    change   of    circumstances   or 
other  causes,  would  render  the  exe- 
cution  unjust   and  unconscientious ; 
The   Bank   of   Alexandria   v.    Ly- 
man,   1     Peters,    371 ;     Porter    v. 
Dougherty,  1  Casey,  405 ;  Patterson 
V.  Martz,   8    Watts,   374;    and   the 
insolvency  of  the  purchaser,  subse- 
quently to  the  sale,  may  consequently 
be  a  reason  for  refusing  him  a  decree, 
where  it  would  otherwise  be  granted ; 
Sims  V.  3I'Ewen,  27  Alabama,  184. 
And  regard  may  be  had  to  the  efi"ect 
of  a  decree  of  specific   performance, 
on  persons  claiming  under  the  origi- 
nal parties  to  the  contract,  as  well  as 
on  the  parties  themselves ;    Johnson 
V.  Huhhell,  2  Johnson,  Ch.  232 ;  Pat- 
terson V.  Martz,  8  Watts,  374.    Thus 
it  was  held  in  Anthony  v.  Lef twitch, 
3  Kandolph,  238,  that  a  contract  of 
sale  could  not  be  enforced  after  the 
lapse  of  six  years,  against  the  daugh- 
ter of  the  vendor,  for  whom  he  had 
made  no  other  provision  in  his  will, 
than  a  devise  of  the  land  sold  to  the 
complainant;  and  similar  ground  was 
taken  in  Callcn  v.  Ferguson,  5  Casey, 
247.     But  when  the  execution  of  the 
contract  has  become  impossible  or  in- 
equitable, compensation   may  be  de- 
creed to  the  complainant,  unless  the 
default  has  been  on  his  side,  and  not 
on   that  of  the   defendant ;  Anthony 
V.    Leftioich ;     Gihhs    v.    Champion, 
3  Ohio,  338 ;    Slaughter  v.  Tindale, 
1  Littell,  358  ;   Woodcock  v.  Bennett, 
1  Cowen,  711.     It  has,  notwithstand- 
ing, been  held,  that  if  the  complainant 
is  aware  of  an  insuperable  obstacle  to 


the  performance  of  the  contract,  be- 
fore filing  his  bill,  he  cannot  resort  to 
equity,  to  obtain  as  compensation,  what 
might  equally  well  be  recovered  as  da- 
mages at  law ;  Morss  v.  Elmendorff, 
11  Paige,  277.  But  this  rule  can 
hardly  apply  in  the  numerous  class  of 
cases,  where  the  right  to  enforce  the 
contract  at  law  has  been  lost  by  a  de- 
fault of  a  nature  not  to  be  regarded 
in  equity. 

There  are  few  cases  in  which  equity 
will  insist  on  the  maxim,  that  he  who 
seeks  equity,  must  do  it,  with  more 
rigor,  than  in  those  of  suits  for  spe- 
cific performance.  And  it  has  even 
been  held,  that  relief  of  this  sort  will 
not  be  granted  to  a  party,  who  is  in 
default  in  the  performance  of  other  en- 
gagements, although  collateral  to  that 
on  which  relief  is  sought.  In  Wal- 
ling V.  Aiken,  1  M'Mullin,  Equity, 
1,  a  defendant,  against  whom  a  bill 
had  been  filed  for  a  conveyance,  was 
said  to  stand  in  the  same  position 
with  a  mortgagee  in  a  suit  for  re- 
demption, and  to  be  entitled  to  use 
his  hold  on  the  legal  estate  in  the 
land,  as  the  means  of  compelling 
a  general  settlement  of  accounts, 
and  not  merely  of  the  amount  due 
on  the  particular  contract.  And 
this  reasoning  will  apply  with  more 
force,  when  the  claim  of  the  party  re- 
sisting a  specific  performance,  is  pure- 
ly equitable,  and  one  for  which  he 
could  have  no  redress  in  an  action  at 
law,  as  in  the  case  of  an  insolvent 
principal,  filing  a  bill  to  enforce  a  con- 
tract for  the  conveyance  of  land, 
against  a  surety,  after  the  maturity  of 
the  obligation,  on  which  the  surety 
has  made  himself  liable ;  Seecrest  v. 
M'Kenna,  1  Strobhart,  Equity,  356. 
This  course  of  decision  seems  a  mere 


700 


SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 


extension  or  application  of  the  right 
of  set-off,  existing  at  law.  And  its 
propriety  is  obvious  in  those  states, 
where  a  set-off  is  allowed  in  suits 
brought  for  unliquidated  damages. 
For  the  defendant  ought  not  to  be  de- 
prived of  any  right,  which  he  would 
have  in  an  action  brought  on  the  con- 
tract in  a  court  of  law,  by  the  change 
of  the  forum  into  equity.  And  the 
right  to  take  collateral  demands  into 
consideration,  once  admitted,  it  must 
necessarily  extend  to  those  which  are 
purely  equitable,  as  well  as  to  those 
which  are  legal.  In  Seaman  v.  Renn- 
sellaer,  10  Barbour,  81,  however,  pay- 
ment of  the  price  of  a  lot  of  land  was 
held  to  entitle  the  purchaser  to  a  con- 
veyance, although  he  had  been  pre- 
vented by  insolvency  from  paying  for 
another  lot,  bought  at  the  same  time, 
but  under  a  distinct  contract. 

Some  cases  may  be  fouud  in  Eng- 
land, which  sanction  the  idea  that  a 
contract  by  a  husband  for  the  sale  of 
his  wife's  lands,  may  be  specifically 
enforced  by  equity,  and  a  decree  made 
compelling  him  to  procure  her  con- 
currence even  when  she  repudiates 
what  has  been  done,  and  refuses  to 
carry  it  into  execution.  But  in  Clark 
V.  Reims,  12  Grattan,  98,  these  cases 
were  said  to  be  shaken  by  the  more 
recent  decisions,  and  to  be  too  much 
at  variance  with  the  spirit  of  equity 
and  fairness,  which  pervades  the  law 
of  specific  performance,  to  be  followed 
by  the  courts  of  this  country.  The 
same  view  was  taken  in  Youmj  v.  Paul, 
2  Stockton,  Ch.  401,  where  the  court 
refused  to  compel  the  husband  to  ob- 
tain a  release  of  dower  from  the  wife, 
and  decreed  the  execution  of  the  con- 
tract, so  far  as  it  lay  in  his  power, 
with  an  indemnity  against  any  claim 


which   might  subsequently  be  made 
by  her. 

It  has  been  held  by  some  of  the 
courts  of  this  country,  that  fraud  and 
mistake  justify  the  admission  of  parol 
evidence  in  all  cases,  whether  under 
the  common  or  statute  law,  and  in  aid 
of  a  specific  performance  as  well  as 
against  it;  Philjiot  v.  Elliott,  4  Mary- 
land Ch.  273.  Thus  in  Keisselbrack 
V.  Livingston,  4  Johnson,  Ch.  144, 
the  chancellor  said  that  he  was  not 
prepared  to  admit  the  soundness  of 
the  distinction,  which  holds  parol  evi- 
dence admissible  to  correct  a  writing 
as  against  but  not  in  favor  of  a  plain- 
tiff, who  seeks  to  enforce  a  specific  per- 
formance. A  similar  opinion  was  ex- 
pressed in  Woi-kman  v.  Guthrie,  5 
Casey,  495,  510 ;  and  the  rule  which 
excludes  the  plaintiff  from  parol  evi- 
dence of  fraud  and  mistake,  said  not 
to  be  followed  by  the  courts  of  Penn- 
sylvania. And  in  Tilton  v.  Tilton,  9 
New  Hampshire,  385,  the  ground 
taken  in  Elder  v.  Elder,  ante,  680,  was 
denied,  and  equity  said  to  be  entitled 
to  reform  a  deed  or  other  writing,  on 
parol  evidence  of  mistake  or  fraud,  and 
then  enforce  it  as  reformed.  It  was  ac- 
cordingly decided,  that  where  a  deed 
was  executed  to  give  effect  to  a  parol 
partition  between  two  tenants  in  com- 
mon, under  which  each  had  gone  into 
possession  of  his  portion  ;  a  mistake  in 
the  deed,  by  which  a  tract  of  wood- 
land comprised  in  the  share  of  the 
one  was  allotted  to  the  other,  might 
be  corrected  on  a  bill  filed  by  the  in- 
jured party.  In  I'yson  v.  Pass- 
more,  2  Barr,  122,  it  was  held,  that 
evidence  might  be  given  of  the  pre- 
vious and  cotcmporaneous  representa- 
tions of  the  vendor,  for  the  purpose 
of  enlarffino;  the  effect  of  an  agree- 


WOOLLAM     V.     HEARN. 


701 


ment  for  the  sale  of  real  estate,  and 
specifically  enforcing  it  as  enlarged. 
And  there  have  been  a  number  of 
other  instances,  in  Pennsylvania,  in 
which  parties  who  were  actually  seek- 
ing a  specific  performance,  or  who 
would  have  been  obliged  to  file  a  bill 
for  specific  performance  in  England, 
in  order  to  succeed,  have  been  allowed 
to  make  out  a  case  by  oral  testimony, 
when  it  would  necessarily  have  failed 
on  the  written  evidence;  ante,  678. 
It  is  proper  to  observe,  that  in  Tilton 
v.  Tilton,  the  agreement  was  exe- 
cuted by  actual  possession,  which  is 
sufl&cient  to  explain  the  decision,  and 
to  prevent  it  from  operating  as  an  au- 
thority for  the  position,  that  a  court 
of  equity  can  enforce  the  specific  per- 
formance of  a  contract  within  the  Sta- 
tute of  Frauds,  when  varied  by  parol 
evidence,  and  unsustained  by  a  part 
performance.  But  this  remark  does 
not  apply  to  the  case  of  Tyson  v.  Pass- 
more,  or  to  many  of  the  other  cases  in 
which  the  question  has  arisen  in  the 
same  tribunal. 

There  are,  moreover,  a  number  of 
cases,  which,  without  denying  the 
rule  which  forbids  a  plaintiff  to  have 
recourse  to  parol  evidence  of  fraud  or 
mistake,  in  aid  of  a  bill  for  specific 
performance,  are  yet  more  or  less  in- 
consistent with  the  principle  on  which 
it  is  founded. 

In  Keisselhrach  v.  Livingston,  ante, 
%11,  the  agreement  between  the  par- 
ties was  under  seal,  and  provided  for 
the  execution  of  a  lease  for  three 
lives,  containing  the  usual  clauses. 
The  only  room  for  parol  evidence, 
under  these  circumstances,  would  seem 
to  have  been,  as  to  what  the  usual 
clauses  thus  stipulated  for  were.  But 
it  was  held  by  the  chancellor,  that  as 


parol  evidence  was  necessarily  admis- 
sible for  this  purpose,  it  might  also  be 
employed  for  that  of  proving  a  verbal 
stipulation  at  the  time  of  executing 
the  agreement,  that  a  particular  clause, 
usual  in  such  leases,  should  not  be  in- 
troduced into  that  provided  for  by  the 
agreement.  And  the  defendant  was 
accordingly  compelled  to  execute  a 
lease  without  the  clause  in  question. 
It  was  said  by  the  chancellor  in  the 
course  of  his  opinion,  that  the  Statute 
of  Frauds  had  no  bearing  on  the  case. 
Yet  that  statute  as  re-enacted  in  New 
York,  expressly  provides,  that  no  con- 
tract, or  sale  of  lands,  or  any  interest 
therein,  shall  be  valid  unless  the 
agreement,  or  some  note  or  memoran- 
dum thereof,  be  in  writing.  And  it 
had  been  held  in  ParkJiurst  v.  Vari 
Cortland,  1  Johnson,  Ch.  273,  that 
where  the  note  or  memorandum,  al- 
though in  writing,  does  not  set  forth, 
or  explain  the  terms  of  the  agreement 
with  suflicient  certainty,  to  enable  the 
court  to  carry  it  into  execution,  parol 
evidence  cannot  be  received,  to  supply 
the  deficiency.  It  is  therefore,  the 
more  singular,  that  such  evidence 
should  have  been  thought  admissible 
under  the  statute,  when  offered  not  to 
explain,  but  to  vary  the  writing,  by 
qualifying  a  general  provision  with  an 
exception.  It  has  already  been  point- 
ed out,  that  the  evidence  in  this  case, 
did  not  show  a  fraudulent  purpose  on 
the  part  of  the  defendant,  at  the  time 
when  the  agreement  was  executed, 
even  if  it  showed  a  fraudulent  use  of 
the  agreement  afterwards,  and  that 
the  admissibility  of  the  evidence  was 
questionable  under  the  doctrine  of 
Lord  Irnhani  v.  Cliild,  apart  from 
the  provisions  of  the  Statute  of 
Frauds;  ante. 


702 


SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 


The  only  mode  of  reconciling  the 
decision  in  KeisselbracJcY.  Livingston, 
with  principle,  seems  to  be  to  look  at 
the  case,  as  it  would  have  been,  had 
the  question  arisen  on  a  bill  filed  by 
the  tenant,  to  restrain  the  landlord 
from  enforcing  the  clause  in  dispute, 
on  the  ground  of  fraud.  Such  an  ap- 
plication might  perhaps  have  been 
sustained,  without  violating  the  sta- 
tute, on  the  distinction  above  taken, 
that  equity  may  set  aside  any  part  of 
a  contract,  which  is  tainted  with  fraud, 
even  where  the  contract  is  required  to 
be  in  writing,  and  the  fraud  is  proved 
by  parol  evidence.  And  it  may  no 
doubt  disregard  any  part  of  a  contract 
in  a  suit  brought  to  enforce  its  execu- 
tion, which  it  would  set  aside,  were 
the  contract  actually  executed.  Even 
this,  however,  could  not  have  been 
done,  without  abandoning  the  princi- 
ple laid  down  in  Lord  Lnham  v. 
Child,  and  adopting  the  Pennsylvania 
doctrine,  that  a  party  who  procures 
the  omission  of  a  clause  from  a  con- 
tract, by  an  assurance  at  the  time  of 
execution,  that  the  contract  shall  have 
the  same  effect,  as  if  the  clause  had 
been  inserted,  is  estopped  from  subse- 
quently insisting  on,  or  enforcing  the 
contract  as  actually  executed. 

But  even  if  this  case  could  be  re- 
conciled with  the  rule  held  in  Eng- 
land, and  adopted  in  Elder  v.  Elder, 
and  Phelps  v.  Oshorn,  there  are  others 
which  seem  irreconcilable  with  it,  and 
with  the  doctrine,  that  the  Statute  of 
Frauds  interposes  a  barrier,  in  all 
cases  within  its  provisions,  to  the  or- 
dinary action  of  equity  in  'reforming 
contracts,  so  as  to  make  them  accord 
with  the  real  intention  of  the  parties, 
and  then  carrying  them  into  execution 
as  reformed.     Parol  evidence  of  fraud 


or  mistake  in  contracts  or  conveyances, 
passing  or  creating  an  interest  in  real 
estate,  has  been  received  in  numerous 
instances,  not  for  the  purpose  of  an- 
nullino;  or  settincr  aside  the  whole  or 
any  part  of  the  contract  or  conveyance, 
but  for  that  of  varying  and  extending 
its  operation,  and  enabling  it  to  pass 
land,  not  embraced  in  its  terms,  or  a 
different  estate  or  interest  in  the  land, 
which  it  does  actually  embrace ;  Wis- 
loall  V.  IMl,  3  Paige,  313;  ILncellx. 
Gibson,  30  Mississippi,  464;  Blodget 
V.  Hohart,  18  Vermont,  414.  Thus  in 
Flagler  v.  Fleiss,  3  Rawle,  345,  parol 
evidence  was  allowed  to  bring  land 
within  the  operation  of  a  conveyance, 
which  was  excluded  by  its  terms. 
And  in  Governeur  v.  Titus,  1  Ed- 
wards, 477 ;  6  Paige,  347,  a  grantee 
of  one  parcel  of  land,  was  allowed  to 
recover  another  on  parol  evidence, 
that  the  first  had  been  inserted  in  the 
deed  by  mistake  for  the  second.  Simi- 
lar decisions  were  made  in  Smith  v. 
Greeley,  14  New  Hampshire,  378 ; 
Craig  v.  Kittridge,  3  Foster,  231,  and 
De  Pei/ster  v.  Hashrouch,  1  Kernan, 
582.  It  will  be  remembered,  that  in 
Elder  V.  Elder,  parol  evidence  was 
held  inadmissible  to  show,  that  a  con- 
tract for  the  sale  of  land  situated  in 
one  township,  extended  to  laud  situ- 
ated in  another.  The  decisions,  there- 
fore, seem  irreconcilable,  unless  it 
can  be  contended,  that  a  party  who 
seeks  to  modify  and  enforce  an  agree- 
ment, stands  in  a  better  position,  after 
the  agreement  is  executed  than  while 
it  is  merely  executory,  in  opposition 
to  the  general  rule  in  equity,  which 
is  the  other  way ;  Willan  v.  Willan, 
16  A''escy,  72.  So  in  Wooden  v.  Jlavi- 
land,  18  Conn.  101,  a  mortgagee  was 
allowed  to  supply  an  accidental  omis- 


WOOLLAM     V.     HEARN. 


703 


sion  in  the  condition  of  the  mortgage 
by  parol  evidence,  although  such  evi- 
dence is  held  inadmissible  in  that 
state,  in  aid  of  a  bill  for  a  specific 
performance ;  ante,  688. 

It  is  true,  that  where  a  bill  is  filed 
to  enforce  a  conveyance  of  land,  by 
giving  it  a  diiferent  or  greater  effect 
than  it  had  originally,  there  is  usual- 
ly not  merely  a  part,  but  a  full  per- 
formance of  the  original  contract  of 
sale,  by  the  delivery  of  the  deed,  and 
of  the  possession  of  the  land  to  the 
vendee.  But  although  a  delivery  of 
possession  raises  a  presumption  of  the 
existence  of  a  contract,  and  thus  jus- 
tifies the  introduction  of  parol  evi- 
dence, where  the  contract  is  verbal, 
it  will  not  justify  a  resort  to  such  evi- 
dence for  the  purpose  of  varying  a 
written  contract,  unless  the  possession 
implies  and  sustains  the  variation. 
Nor  do  the  reasons,  on  which  equity 
proceeds  in  decreeing  a  specific  exe- 
cution on  the  ground  of  part  perform- 
ance, apply  in  favor  of  varying  the 
effect  of  a  contract  executed  by  deed. 
Equity  will  undoubtedly  reform  writ- 
ten instruments,  in  cases  not  within 
the  statute,  on  parol  evidence  of  fraud 
or  mistake,  but  the  relief  afforded  in 
most  cases  within  the  statute,  has  been, 
by  setting  the  conveyance  wholly  or 
partially  aside,  and  not  by  varying  or 
enlarging  its  operation.  In  Okill  v. 
Whittaher,  2  Phillips,  338,  the  resi- 
due of  a  term  of  years  was  assigned, 
under  a  mistaken  belief  on  the  part 
both  of  assignor  and  assignee,  that  it 
would  expire  in  eight  years,  while  in 
point  of  fact  it  had  twenty  years  to 
run,  before  reaching  its  termination, 
and  a  bill  was  filed  to  have  the  assi- 
gnee declared  a  trustee  for  the  assignor, 
as  to  that  portion  of  the  term,  to  which 


the  mistake  extended.  But  it  was 
held,  that  the  prayer  of  the  bill  could 
not  be  granted,  without  violating  the 
provisions  of  the  Statute  of  Frauds. 
''  It  is  impossible,"  said  the  chancel- 
lor, "  to  give  any  relief  on  this  bill. 
It  goes  far  beyond  any  of  the  cases 
that  have  been  cited.  The  plaintiffs 
do  not  ask  to  rescind  the  transaction 
altogether:  nor  could  they;  for,  after 
ten  years'  occupation  and  expectation 
of  the  benefit  of  renewal,  it  would  be 
impossible  to  restore  the  purchaser  to 
his  original  situation.  What  they 
say  is,  that  the  contract  was  improper- 
ly executed  by  the  assignment,  and 
they  ask  that  what  remains  of  the 
term  after  the  expiration  of  the  eight 
years  may  be  reassigned.  But  what 
is  that,  but  to  call  upon  this  court  to 
decree  specific  performance  of  a  con- 
tract with  a  variation  ?  For  the  thing; 
that  both  the  vendor  agreed  to  sell  and 
and  the  purchaser  to  buy,  was  the  re- 
sidue of  the  term,  and  not  a  portion  of 
the  residue. 

"  Suppose  a  party  proposed  to  sell 
a  farm,  describing  it  as  '  all  my  farm 
of  200  acres,'  and  the  price  was  fixed 
on  that  supposition,  but  it  afterwards 
turned  out  to  be  250  acres,  could  he 
afterwards  come  and  ask  for  a  recon- 
veyance of  the  farm,  or  payment  of 
the  difference  ?  Clearly  not;  the  only 
equity  being  that  the  thing  turns  out 
more  valuable  than  either  of  the  par- 
ties supposed.  And  whether  the  ad- 
ditional value  consists  in  a  longer 
term  or  a  larger  acreage,  is  immate- 
rial. 

''  Some  of  the  cases  cited  were 
cases  in  which  the  parcels  in  the  deed 
embraced  more  than  the  parties  in- 
tended to  deal  with.  But  the  misfor- 
tune of  this  case  is,   that  here  the 


704 


SPECIFIC     PERFORMANCE. — PAROL     EVIDENCE. 


plaintiffs  did  intend  to  sell  all  tlie  re- 
maining interest  in  the  lease,  but  by 
their  own  mistake  they  misdescribed 
■what  that  interest  was.  I  cannot  dis- 
tinguish such  a  case  from  that  of  a 
bill  to  compel  specific  performance 
with  a  variation  ;  for  the  object  of  the 
bill  is  to  introduce  a  new  term  :  either 
to  make  the  purchaser  pay  more,  or  to 
make  him  a  trustee  of  the  rest  of  the 
term.  That  cannot  be  done."  And 
in  Churchill  v.  Rogers,  3  Monroe,  81, 
it  was  held,  that  the  operation  of  a 
deed  could  not  be  enlarged  by  parol 
evidence  of  mistake,  so  as  to  make  it 
include  a  greater  amount  of  land,  than 
was  actually  embraced  by  its  terms. 

The  decisions,  therefore,  on  this 
subject,  seem  susceptible  of  division 
into  two  classes,  in  one  of  which  the 
complainant  has  been  refused  per- 
mission to  prove  fraud  or  mistake,  by 
parol,  for  the  purpose  of  varying  or  es- 
tablishing a  right  to  an  estate  in  land, 
while  it  has  been  held  in  the  other, 
that  as  the  Statute  of  Frauds  was  in- 
tended to  guard  against  fraud,  it  shall 
not  be  allowed  to  interfere  in  any  case, 
with  the  jurisdiction  of  equity  for  the 
prevention  and  correction  of  fraud. 
Thus  it  has  been  authoritatively  said 
on  more  thau  one  occasion,  that  if 
either  of  the  parties  to  a  contract, 
within  the  statute,  prevent  it  from 
being  reduced  to  writing  by  fraud,  it 
will  be  enforced  against  him,  notwith- 
standing the  statute;  HollisY.  Whit- 
inrj,  1  Yern.  151 ;  Lecke  v.  Morris, 
2  Cha.  Cases,  105  ;  Whitchurch  v.  Be- 
vis,  2  Brown,  Ch.  Cases,  559,  5G5  ;  1 
Story,  Equity,  section  330 )  Vaux  v. 
Caldivell,  2  Bibb.  244 ;  Iloselj/  v. 
Lane,  27  Alabama,  62,  73.  It  is 
obvious,  that  if  this  can  be  done, 
where  the  whole  contract  remains  in 


parol,  it  may  equally  be  done,  where 
the  greater  part  is  written,  and  a  par- 
ticular   stipulation   fraudulently   ex- 
cluded;    Ph>/fe    V.    Warden,   2   Ed- 
wards,  47.     The    doctrine   that   the 
operation  of  the  statute  is  suspended 
by  mistake  or  fraud,  will  be  found 
strongly  asserted  in  Brown  v.  Lynch, 
1  Paige,  147,  and  is  perhaps  the  best 
explanation,  which  can  be  given  of 
such  decisions  as  that  of  Keisselhrack 
V.  Livingston;  Smith  v.  Greeley;  De 
Peyster  v.  Uashrouch,  and  the  various 
other  cases,  in  which  courts  of  equity 
have  undertaken  the  office,  of  vary- 
ing and  enlarging  the  effect  of  exe- 
cuted  or   executory   conveyances   of 
real  estate,  upon  parol  evidence,  and 
for  the  purpose  of  making  them  cor- 
respond with  the  verbal  stipulations 
of  the  parties.     And  the  numerous 
instances,  in  which  parol  defeasances 
have  been  engrafted  on  absolute  deeds, 
without  proof  of  mistake  or  premedi- 
tated fraud,  ante,  G76,  are  in  direct 
contravention  both  of  the  rule  as  to 
parol   evidence,  and  of  the   Statute 
of  Frauds,  unless  regarded  as  excep- 
tional, or  put  on  the  ground  that  tho 
operation  both  of  the  rule  and  the  sta- 
tute, will  be  suspended,  when  neces- 
sary for  the  prevention  or  correction 
of  a  subsequent  breach  of  trust,  or  of 
an  original  fraud ;  Flint  v.  Sheldon, 
13  jNIass.  448 ;  Reading  v.  Weston,  8 
Conn.    118;    Uowell  v.    Gibson,   30 
Mississippi,  464;    Williams  v.  Con- 
rad, 11  Yerger,  412;   Langham  v. 
WhittaJcer,    14    B.    Monroe,    024; 
Mosely  V.  Lane,  27  Alabama,  62,  73 ; 
Eos/ord  V.  Merwin,  5  Barb.  51.     In 
the  recent  case  of  Taylor  v.  Luther, 
2  Sumner,  228,  in  which  effect  was 
given  to  such  a  defeasance.  Story,  J., 
held  the  following  language  :  "Noth- 


W  0  0  L  L  A  M     V.      H  E  A  R  N. 


705 


ins:  is  better  settled,  tliau  that  the 
true  'constructiou  of  the  Statute  of 
Frauds,  does  not  exclude  the  enforce- 
ment of  parol  agreements  respecting 
the  sale  of  lands  in  cases  of  fraud; 
for,  as  it  has  been  emphatically  said, 
that  would  be  to  make  a  statute,  pur- 
posely made  to  prevent  fraud,  the 
veriest  instrument  of  fraud.  The 
whole  class  of  cases  in  which  courts 
of  equity  act,  in  enfurcing  contracts 
for  the  sale  of  lands  in  cases  of  part 
performance,  turns  upon  this  general 
doctrine.  It  is  laid  down  with  great 
clearness  and  strength  by  my  learned 
friend  Mr.  Chancellor  Kent,  in  his 
commentaries,  (vol.  4,  143,)  and  he 
is  fully  borne  out  by  the  authorities 
which  he  has  cited,  (which  I  have 
also  examined,)  and  also  by  other  au- 
thorities in  pari  maleri.  He  states 
it  thus :  *  a  deed  absolute  upon  the 
face  of  it,  and  though  registered  as  a 
deed,  will  be  valid  and  eifectual  as  a 
mortgage,  as  between  the  parties,  if 
it  was  intended  by  them  to  be  merely 
a  security  for  a  debt.  And  this  would 
be  the  case,  though  the  defeasance 
was  by  an  agreement  resting  on  parol; 
for  parol  evidence  is  admissible  to 
show,  that  an  absolute  deed  was  in- 
tended as  a  mortgage,  and  that  the 
defeasance  had  been  omitted  or  de- 
stroyed by  fraud  or  mistake.'  It  is 
the  same,  if  it  be  omitted  by  design, 
upon  mutual  confidence  between  the 
parties ;  for  the  violation  of  such  an 
agreement  would  be  a  fraud  of  the 
most  flagrant  kind,  originating  in  an 
open  breach  of  trust  against  conscience 
and  justice.  I  do  not  comment  upon 
this  subject  at  large,  because  it  seems 
to  me  wholly  unnecessary,  in  the  pre- 
sent state  of  the  law,  to  do  more  than 
to  enunciate  the  principles  whicb 
VOL.  II — 45 


govern  cases  of  this  nature,  and  which 
are  as  well  established  as  any  which 
govern  any  branch  of  our  jurispru- 
dence. In  the  present  case  there  is 
no  pretence  to  say,  that  Algernon 
Westcott,  or  the  defendant,  have  ever 
paid  to  the  plaintiffs  the  full  value  of 
the  land ;  and,  indeed,  the  defendant 
does  not  himself  assert,  as  a  distinct 
matter  of  defence.  So  that,  if  the 
facts  are  fully  made  out,  and  the  plain- 
tiffs are  remediless,  there  will  have 
been  perpetrated  a  gross  fraud  and  in- 
justice upon  the  plaintiffs,  and  the 
defendant  will  reap  the  full  reward  of 
an  iniquitous  bargain  on  his  side,  ob- 
tained by  meditated  fraud  and  deceit. 
It  is  hoped  that  the  morals  of  a  court 
of  equity  will  at  all  times  be  found  too 
strong  to  suffer  such  injustice  to  go 
unredressed." 

This  language  approaches,  if  it  does 
not  reach  the  full  extent  of  the  proposi- 
tion, that  parol  evidence  is  admissible, 
not  only  for  the  purpose  of  proving 
fraud  or  mistake,  and  thus  varying  or 
avoiding  the  effect  of  a  deed  or  writ- 
ing, but  for  that  of  adding  a  stipula- 
tion to  the  instrument,  in  the  first  in- 
stance, and  then  founding  an  inferen- 
tial charge  of  fraud  or  breach  of  trust, 
on  the  failure  to  fulfil  it.  If  this  can 
be  done,  the  salutary  restraints  im- 
posed by  the  rule  of  evidence  laid 
down  in  Lord  Irnham  v.  Child,  and 
by  the  Statute  of  Frauds,  are  obvi- 
ously at  an  end. 

There  are  few  cases  in  which  one 
party  can  refuse  to  fulfil  a  verbal  con- 
tract, which  has  been  acted  on  by  an- 
other, without  a  want  of  good  faith, 
approaching  to  fraud,  and  when  this 
is  the  case,  proof  of  the  contract  will 
carry  with  it  such  an  implication  of 
fraud,  as  to  bring  the  contract  within 


'06 


SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 


the  rule  laid  down  in  Taylor  v.  Lu- 
ther.  The  same  remark  applies  with 
greater  force,  to  cases  in  which  evi- 
dence is  offered  for  the  purpose  of 
proving,  that  a  written  contract  was 
executed  on  the  faith  of  an  assurance 
by  one  party,  that  the  other  should 
have  the  benefit  of  a  verbal  stipula- 
tion, made  at  the  time  of  executing 
the  contract.  If  such  evidence  is  to 
be  admitted,  whenever  its  admission 
is  necessary  for  the  prevention  of 
fraud,  it  can  never  be  rejected,  for  it 
necessarily  gives  rise  to  a  presumption 
of  fraud.  To  hold  that  parol  evidence 
may  be  admitted  for  the  purpose  of 
showing  that  the  contract  is  other  than 
it  purports  to  be,  and  thus  founding 
a  charge  of  bad  faith  on  the  attempt 
to  enforce  it  as  it  is,  is  therefore  to 
reduce  the  Statute  of  Frauds  in  most 
cases,  to  a  dead  letter.  The  most 
liberal  construction  given  to  that  sta- 
tute, ought  not  to  go  further  than  the 
cases  of  Lamhorn  v.  Watson,  6  Harris 
&  Johnson,  252,  and  Lamhorn  v. 
Moore,  lb.  422,  where  it  was  held, 
that  to  authorize  relief  on  a  contract 
within  its  terms,  it  must  be  shown 
that  the  contract  had  its  inception  in 
the  fraud  of  the  party  against  whom 
the  relief  is  sought,  and  not  merely 
that  he  is  making  a  fraudulent  use  of 
the  statute,  to  keep  an  advantage  ob- 
tained through  the  reliance  of  the  op- 
posite party,  on  his  good  faith  and  fair 
dealing ;  Wihon  v.  Wcitfs,  9  Maryland, 
35G.  Even  if  fraud  can  render  a  parol 
agreement  admissible  in  evidence  to 
control  a  deed,  still  the  fraud  should 
be  proved  before  the  agreetnent  is  ad- 
mitted. To  prove  the  fraud  by  the 
agreement,  and  then  give  effect  to  the 
agreement  on  the  ground  of  the  fraud, 
is  obviously  reasoning   in    a   vicious 


circle ;  Johnston  v.  La  Motte,  6  Rich- 
ardson, Eq.  3-17,  356;  Tou-ner  v. 
Lucas,  13  Grattan,  7U5,  716;  Lam- 
horn V.  Watson,  6  Harris  &  J.  252 ; 
Wilson  V.  Waits,  0  Maryland,  461.  The 
acts  and  declarations  of  the  parties  at 
or  before  the  execution  of  a  written 
agreement,  may  no  doubt  be  given  in 
evidence  to  prove  fraud;  and  when 
fraud  is  proved,  equity  may  give  relief 
by  setting  the  whole  aside,  although 
it  has  been  said,  that  it  cannot  go 
further  and  enforce  an  oral  stipulation 
or  agreement  as  a  trust,  on  the  ground 
that  it  has  been  fraudulently  excluded 
from  the  writing,  unless  the  case  pre- 
sents special  or  fiduciary  relations  on 
which  a  trust  can  be  founded;  Lang- 
horn  V.  Payne,  14  B.  3Ionroe,  624 ; 
Hutchinson  v.  Tindall,  2  Green,  Ch. 
357.  These  distinctions  are  well  illus- 
trated by  the  cases  of  3P Donald  v. 
May,  1  Richardson,  Eq.  91 ;  Schmidt 
V.  Gatewood,  2  Id.  162,  an^  Johnston  v. 
La  Motte,  6  Id.  347,  where  it  was  held 
that  an  oral  agreement  to  purchase  land 
at  a  sheriff's  sale,  for  the  benefit  of  the 
defendant  in  the  execution,  could  not 
be  admitted  in  evidence  to  prove  a 
trust  in  favor  of  the  latter,  but  that 
the  acts  and  declarations  of  the  pur- 
chaser as  to  the  object  of  his  purcliase, 
were  admissible  to  show  fraud  on  his 
part,  and  would  authorize  the  court  to 
vacate  the  conveyance  and  decree  a 
resulting  trust,  though  not  to  give 
effect  to  that  stipulated  for  or  provid- 
ed by  the  agreement.  In  making  this 
decision,  the  court  held  the  following 
language.  ''It  is  alleged  that  this 
purchase  was  made  at  a  sacrifice,  un- 
der an  agreement  on  the  part  of  the 
plaintiff,  that  the  family  should  have 
the  benefit  of  it.  The  evidence  rests 
in  parol.    It  is  argued  that  the  family, 


WOOLLAM     V.     HEARN. 


707 


trusting  to  the  agreement,  permitted 
the  plaintiff  to  purchase  at  a  sacri- 
fice ;  that  to  allow  him  to  retain  the 
property  under  such  circumstances, 
would  encourage  fraud ;  and  that, 
upon  this  distinct  ground,  indepen- 
dently of  the  Statute  of  Frauds,  a 
trust  should  be  decreed.  Undoubt- 
edly there  are  cases,  (such  as  M' Don- 
ald V.  Maij,  1  Rich.  Eq.  91,)  where  a 
party,  who  enables  himself  to  purchase 
at  an  under  rate,  by  representing  that 
he  is  buying  for  another,  is  liable  to 
have  his  purchase  set  aside  for  fraud. 
These  are  cases  where  competition  is 
fraudulently  reduced  or  destroyed. 
In  such  cases,  it  matters  not  whether 
there  was  an  agreement  or  not. 

"  Indeed,  in  the  latter  case,  where, 
of  course,  the  representation  is  wholly 
false,  that  circumstance  serves  only 
to  enhance  the  fraud  complained  of. 
Such  cases  as  these,  steer  entirely  clear 
of  the  Statute  of  Frauds.  The  evi- 
dence of  the  purchaser's  representa- 
tions is  received,  not  for  the  purpose 
of  substantiating  the  supposed  agree- 
ment, but  for  the  purpose  of  showing 
the  means  by  which  he  effected  his 
fraudulent  design,  and  when  received, 
it  is  employed  not  for  the  purpose  of 
enforcing  the  contract,  but  for  that  of 
setting  it  aside. 

"  But  no  such  circumstances  have 
been  developed  in  this  case.  The 
fraud  insisted  on,  consists  merely  in 
the  non-fulfilment  of  the  alleged  agree- 
ment, and  depends,  of  course,  entirely 
on  the  question,  whether  there  was  in 
fact  an  agreement  to  be  performed,  and 
that  preliminary  fact,  the  statute  will 
not  allow  to  be  established  by  parol." 

The  language  thus  held,  seems  to 
express  the  true  rule  on  this  difficult 


and  disputed  question.  That  some 
exceptional  cases  or  classes  of  cases 
go  beyond  it,  can  be  no  reason  for  suf- 
fering the  exceptions  to  eat  out  the 
rule,  and  affect  the  title  to  real  estate, 
with  all  the  uncertainties  of  parol  tes- 
timony. In  most  of  these  cases,  more- 
over, the  trust  or  contract  is  an  impli- 
cation from  facts,  which  diminishes 
the  danger  of  wilful  or  intentional 
misrepresentation.  Thus,  in  the  or- 
dinary case,  where  a  purchaser  goes 
into  possession  under  a  parol  contract, 
the  existence  of  the  contract  is  mani- 
fested by  the  change  of  possession, 
and  the  only  question  can  be  as  to  its 
nature.  So  when  the  consideration 
for  a  deed  is  proved  to  be  a  loan,  the 
inference  of  law  necessarily  is,  that 
the  deed  is  a  mortgage.  But  to  hold 
that  an  absolute  conveyance  can  be 
turned  into  a  mortgage,  merely  by 
evidence  that  the  parties  agreed  ver- 
bally, that  it  should  have  that  charac- 
ter, is  to  proceed  upon  a  much  looser 
rule,  and  upon  very  different  premises. 
The  difficulty  is  partially  obviated, 
where  the  stipulation  for  a  defea- 
sance is  fraudulently  or  accidentally 
omitted  from  the  instrument,  for 
there  the  case  is  brought  within  the 
rules  of  evidence,  and  the  only  ob- 
stacle is  in  the  enactments  of  the 
Statute  of  Frauds,  But  where  the 
evidence  consists  solely,  in  the  alleged 
declarations  or  admissions  of  the  pur- 
chaser, as  to  the  defeasible  character  of 
his  purchase,  it  would  seem  liable  to  the 
gravestobjectionSjbothasitregardsthe 
statute  and  on  general  principles,  and 
can  hardly  be  admitted  with  safety, 
unless  the  danger  which  has  so  long 
been  supposed  to  attach  to  mere  parol 
evidence,  is  altogether  imaginary. 


708 


SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 


TTe  may  therefore  infer,  without 
much  danger  of  error,  that  whenever 
fraud  or  undue  influence  is  used  by  one 
man,totheprejudiceof  another,  equity 
may  redress  the  wrong,  by  raising  a 
trust  in  favor  of  the  injured  party,  even 
when  an  estate  in  land  is  in  question, 
and  the  fraud  is  proved  solely  by  oral 
testimony,  collaterally,  or  in  opposi- 
tion to  a  deed  or  other  writing ;  the 
statute  being  intended  for  the  pre- 
vention of  unfair  dealing,  and  not 
for  its  protection  ;    Thynn  v.   Tliynn, 

1  Vernon,  296;  Strickland  v.  -4?- 
dridge,  9  Vesey,  516  j  Mcstaer  v. 
Gillesjpie,.  11- Yesej,  621;  Brown  v. 
Lynch,  1  Paige,  147 ;  Swett  v.  Ja- 
cocks,  6  Id.  355 ;  3Iartin  v.  Martin, 
16  B.  Monroe,  8 ;  Kennedy  v.  Ken- 
nedy, 2  Alabama,  571 ;  Reech  v.  Ken- 
negal,  1  Vesey,  123 ;  Trajmall  v. 
Brown,  19  Arkansas,  39,  49  ;  Shields 
V.  Trammell,  lb.  51;  ante,\o\.  1,  p.  274. 
But  the  weight  of  authority  would 
seem  to  be,  that  to  constitute  fraud, 
and  suspend  the  operation  of  the  sta- 
tute, there  must  be  deceit  or  misre- 
presentation, as  distinguished  from  a 
mere  breach  of  promise,  however 
wrongful ;  and  that  those  who  choose 
to  rely  upon  an  oral  assurance,  in 
cases  where  the  legislature  has  re- 
quired a  writing,  must  trust  to  the 
honor  of  those  with  whom  they  deal, 
and  cannot  look  to  the  law  for  indem- 
nity, for  the  breach  of  an  engagement 
which  it  has  solemnly  deprived  of  all 
legal  value ;    Camjyhcll  v.  Campbell, 

2  Jones,  Eq.  364 ;  Miller  v.  Gotten, 
5  Georgia,  341,  346;  LamJjorn  v. 
Watson,  6  Harris  &  Johnson,  252  ; 
Wilson  v.  Waits,  9  Maryland,  461  • 
ante. 

If  the  doctrine,  that  a  plaintiff  can- 
not prove  mistake  or  fraud,  in  aid  of 


a  bill  for  specific  performance,  be 
brought  to  the  test  of  these  principles, 
we  shall  find  much  reason  to  question 
its  soundness  in  point  of  theory,  and 
to  doubt  whether  it  is  more  than  a  rule 
of  practice  and  policy,  designed  to  mo- 
derate the  powers  of  chancery  in  en- 
forcing contracts  for  the  purchase  and 
sale  of  land,  and  to  limit  their  exer- 
cise to  cases  in  which  the  claim  is  sus- 
tained by  the  certainty  of  written  evi- 
dence, or  verified  by  an  actual  trans- 
fer of  possession.  For,  since  relief 
may  be  given,  and  a  conveyance  of  land 
decreed  on  the  ground  of  fi'aud  or  mis- 
take, without  the  aid  of  a  writing,  or 
when  the  case  is  made  out  by  written 
evidence,  apart  from  fraud,  the  same 
course  may  be  taken,  when  both  these 
grounds  are  united,  and  when  the  de- 
ficiencies of  the  writing  are  shown  to 
have  been  occasioned,  and  to  be  covered 
by  mistake  or  fraud ;  Phyfe  v.  Wardell, 
2  Edwards,  47;  Belloivs  v.  Stoive,  14 
N.  Hamp.175.  And  it  would  seem  not 
less  plain,  that  if  this  course  can  be 
taken,  after  the  transaction  has  been 
brought  to  a  close,  by  the  execution 
and  delivery  of  a  deed  or  mortgage, 
it  must  be  equally  admissible  while 
the  whole  still  remains  open,  and  may 
be  moulded  by  the  intervention  of 
chancery,  into  the  form  best  suited  to 
prevent  injustice,  and  give  effect  to 
the  truth  of  the  case,  and  the  real 
purpose  and  object  of  the  parties. 
Nothing,  therefore,  can  be  more  just 
or  reasonable,  than  the  opinion  inti- 
mated by  Chancellor  Kent,  in  Keis- 
selbrach  v.  Livingston,  4  Johnson, 
Ch.  144,  and  sanctioned  by  the  Su- 
preme Court  of  Pennsylvania,  in 
Workman  v.  Guthrie,  5  Casey,  495, 
510  ;  and  Raffenshergcr  v.  Cullison, 
4  Id.  420;  that  when  fraud  or  mis- 


WOOLLAM     V.      HEARN. 


709 


take  are  in  question,  the  plaintiff  stands 
on  the  same  footing  as  the  defendant, 
and  that  the  only  superiority  of  the 
defendant  lies  in  the  right  to  give  col- 
lateral circumstances,  or  extrinsic  oral 
stipulations  in  evidence,  which  do  not 
vary  the  strict  right,  and  are  yet  pow- 
erful appeals  to  the  discretion  which 
forms  a  marked  feature  in  the  juris- 
diction of  equity,  and  distinguishes  it 
from  the  courts  of  common  law ;  Toicn- 
shend  v.   Stangrooni,  6  Vesey,  328, 
333.     "  The  point  ruled  in  Woollam 
V.   Hearn,"    said  Woodward,  J.,  in 
delivering  the  opinion  of   the  court 
mWorkmanY.  Guthrie,  ''that though 
a  defendant  resisting  specific  perform- 
ance may  go  into  parol  evidence  to 
show  that  hy  fraud  i\iG  written  agree- 
ment does  not  express  the  real  terms, 
a  plaintiff  cannot  do  so  for  the  pur- 
pose of  obtaining  a  specific  perform- 
ance with  a  variation,  is  an  emphatic 
expression  of  the  distinction  between 
a  plaintiff  seeking  and  a  defendant  re- 
sisting specific  performance ;  but  it  is, 
in  itself  considered,  a  doctrine  which 
we  do  not  follow.     In  cases  of  fraud, 
mistake,  surprise,  or  trust,  we  allow 
either  plaintiff  or  defendant  to  go  into 
parol  evidence.      We  follow  Chancel- 
lor Kent's  able  opinion,  in  Gillespie 
V.  Moon,  2  Johnson,  Ch.  R.  585,  as 
was  indicated  in  our  recent  opinion 
in  Raffen&hcrgcr  v.  Cullison  &  Roth, 
Middle  District,  June  Term,  1857." 
The  nature  and  limits  of  the  some- 
what undefined  region  in  which  the 
defendant  may  take  shelter  from  the 
pursuit  of  the  plaintiff,  may  perhaps 
best  be  understood  by  a  reference  to 
Lord  Eldon's  opinion  in   Townshend 
V.   Stangroom,   6  Vesey,  328,  333; 
and  yet,  his  lordship,  in   describing 
and  illustrating  it,  speaks   of  fraud, 


surprise,  and  mistake,  which  are 
among  the  great  heads  of  equity 
and  jurisprudence,  and  should  there- 
fore, as  it  would  seem,  be  equally  open 
to  those  who  seek  and  those  who  resist 
a  specific  performance.  There  is  no 
case  better  suited  to  the  distinction 
taken  in  Woollam  v.  Hearn,  than 
that  which  arises  where  an  agreement 
in  writing  is  subjected  to  a  subsequent 
oral  modification;  RaffensbergerN.  Cul- 
lison, 4  Casey,  426,  429 ;  Boyce  v. 
J/'  Cullough,  3  W.  &  S.  429, 433;  Worh- 
man  v.  Guthrie  ^  Steevens  v.  Coojyer, 
1  Johnson,  Ch.  425,  429;  because 
the  evidence  is  clearly  admissible  at 
common  law,  and  the  only  difficulty 
lies  in  the  provisions  of  the  statute, 
which  says  that  a  defendant  shall  not  be 
charged  without  a  writing,  but  does 
not  say  that  a  writing  shall  be  neces- 
sary to  discharge  him.  It  is,  how- 
ever, necessary  to  remember,  even 
under  these  circumstances,  that  as  be- 
tween two  persous,who  stand  in  the  po- 
sition of  vendor  and  vendee,  and  whose 
rights  are  necessarily  co-ordinate  and 
dependent,  what  is  gained  by  one  is 
necessarily  taken  from  the  other,  and 
that  loosing  the  defendant  is  only 
another  phrase  for  binding  the  com- 
plainant; ante,  693. 

Whatever  doubt  may  exist  on  these 
points,  it  is  thoroughly  well  settled, 
that  in  the  absence  of  fraud  and  un- 
due influence,  oral  testimony  is  whol- 
ly inadmissible  to  enlarge  or  vary  a 
contract ;  to  supply  its  defects  or  omis- 
sions ;  or  for  any  other  purpose  than 
that  of  supplying  the  connection  be- 
tween the  provisions  of  the  contract 
and  the  subject-matter  to  which  it 
relates ;  and  that  unless  the  party  who 
seeks  a  specific  performance  can  make 
out  his  case,  in  all  essential  particu- 


710 


SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 


lars,  by  written  evidence,  he  must  fail 
altogether,  however  full  the  proof  may 
be  on  particular  points.  The  contract 
must,  therefore,  not  only  exist,  and 
be  reduced  to  writing,  but  its  terms 
must  be  set  forth  with  sufficient  ful- 
ness and  precision,  to  disclose  the  in- 
tention of  the  parties  with  reasonable 
certainty,  without  a  recourse  to  un- 
written evidence  ;  Stoddert  v.  Tuck, 
5  Maryland,  18 ;  Willis  v.  Forney,  1 
Busbee,  Eq.  256;  Aday  v.  Echols, 
18  Alabama,  353;   Steel  v.  Stamps, 

2  Sneed,  172  ;    Tcdman  v.  Franklin, 

3  Duer,  395;  Soles  v.  Hickman,  8 
Harris,  180;  Farwell  v.  Lowther, 
18  Illinois,  253  ;  ante,  vol.  1.  The 
law  was  so  held  by  Chancellor  Kent, 
in  Parkhnrst  v.  Van  Cortland,  1 
Johnson,  Ch.  273.  And  although 
this  decision  was  subsequently  revers- 
ed by  the  Court  of  Errors,  yet  the  re- 
versal went  on  the  ground  that  the 
contract  had  been  taken  out  of  the 
statute,  by  subsequent  part  perform- 
ance, and  not  on  a  denial  of  the  gene- 
ral principles  asserted  in  the  court 
below;  14  Johnson,  32.  The  same 
point  was  decided  in  Seitzinger  v. 
Ridgxcay,  4  W.  &  S.  472 ;  and  again 
in  the  recent  case  aiParrisli  v.  Koons, 
Parsons'  Equity  Cases,  79,  where  the 
following  language  was  held  by  King, 
President,  in  delivering  the  opinion 
of  the  court :  "  To  constitute  an  ade- 
quate written  agreement  for  the  sale 
of  lands  within  the  statute,  it  is  ne- 
cessary that  it  should  state  the  terms 
of  the  contract  with  reasonable  cer- 
tainty, so  that  the  substance  of  it 
could  be  made  to  appear  aVid  be  un- 
derstood from  the  writing  itself,  with- 
out having  recourse  to  parol  proof. 
For,  an  agreement  defective  in  cer- 
tainty, cannot  be  supplied  by  parol 


proof,  for  that  would  at  once  open  the 
door  to  perjury,  and  to  introduce  all 
the  mischiefs  which  the  statute  was 
intended  to  prevent.  A  contract  can- 
not rest  partly  in  writing  and  partly 
in  parol.  Unless  the  essential  terms 
of  the  bargain  and  sale  can  be  ascer- 
tained from  the  writing  itself,  or  by 
a  reference  contained  in  it  to  some- 
thing else,  the  writing  is  not  a  com- 
pliance with  the  statute ;  Parkhnrst 
V.  Van  Cortland,  1  John.  Ch.  R.  273. 
If  a  contract  be  vague  and  uncertain, 
a  court  of  equity  will  not  exercise  its 
extraordinary  jurisdiction,  but  leave 
the  party  to  his  legal  remedy;  Colson 
V.  Thompson,  2  Wheat.  341 ;  Aheel 
v.  RadcUff,  13  John.  R.  297.  In 
Reed's  Heirs  v.  Hornhack,  4  J.  J. 
Marsh.  377,  it  was  ruled  that  specific 
execution  of  a  contract  will  not  be  en- 
forced, unless  parties  have  described 
and  identified  the  particular  tract,  or 
unless  the  contract  furnishes  the 
means  of  identifying  with  certainty 
the  land  to  be  conveyed.  Other  Ame- 
rican cases  on  the  doctrine  will  be 
found  in  Ellis  v.  Deadman's  Heirs, 
4  Bibb,  467;  Kendall  v.  Almy,  2 
Sumner,  278;  Carr  v.  Duval,  14 
Peters,  77 ;  Aheel  v.  Radclijf,  13 
John.  B.  297.  The  English  cases  on 
this  subject  are  cited  and  commented 
upon  in  Sugden  on  Vendors,  vol.  1, 
p.  118.  And  whether  the  instru- 
ment from  which  the  contract  is 
sought  to  be  deduced  is  a  receipt  for 
a  deposit,  earnest,  or  purchase-money, 
it  must  contain  the  same  requisites 
to  bring  it  within  the  statute.  In 
Blagden  v.  Bradhear,  12  Vesey,  466, 
it  was  held  by  the  master  of  the  rolls, 
that  although  an  auctioneer's  receipt 
for  the  deposit,  may  amount  to  a  suf- 
ficient note   or   memorandum  of  an 


WOOLLAM     V.     HEARX. 


711 


agreement  witliin  the  statute,  yet  for 
that ^mrpose  the  receipt  must  coutaia 
in  itself,  or  by  reference  to  something 
else,  -what  the  agreement  is.  This 
doctrine  had  previously  been  strong- 
ly intimated  by  Lord  Eldon,  in  Coles 
V.  TrecotUck,  9  Ves.  252,  253. 

"  The  application  of  these  princi- 
ples to  the  case  before  the  court, 
seems  decisive  against  the  plaintiiF. 
The  only  written  memoranda  of  the 
original  contract  are  found  in  the  de- 
fendant's proposal  and  the  plaintiff's 
receipt,  which  are  considered  by  the 
plaintiff  as  forming  one  instrument. 
The  absolute  insufficiency  of  these 
documents  to  constitute  any  definite 
contract  in  themselves,  appears  best 
from  simply  reciting  them.  They  are 
as  follows :  '  The  most  is  3700,  sub- 
ject to  3000  mortgage.  No  taxes  or 
other  liens  (except  the  mortgage)  will 
be  allowed.  Received  Ten  Dollars  on 
account  of  the  purchase.  The  mort- 
gage to  be  removed  from  the  Fifth 
street  lot  as  soon  as  the  title  is  made, 
without  delay.  R.  A.  Parrish  :  For 
Isaac  Koons,  Richard  Tea.'  Can  any 
thing  be  extracted  from  such  papers, 
from  which  a  court  of  chancery  can 
advisedly  decree  a  specific  perform- 
ance ?  Where  is  the  estate  bargained 
for?  What  is  the  quantity  of  land 
to  be  conveyed  ?  What  is  the  kind 
of  estate  to  be  conveyed  ?  Without 
associating  these  papers  with  the  parol 
evidence  in  the  cause,  it  is  impossible 
to  extract  anything  intelligible  from 
them.  This,  as  has  been  seen,  is 
wholly  inadmissible;  PurTehurst  v. 
Van  Cortland,  supra.  Every  agree- 
ment which  is  required  to  be  in  writ- 
ing by  the  Statute  of  Frauds,  must 
be  certain  in  itself,  or  capable  of  being 
made  so  by  reference  to  something  else, 


whereby  the  terms  can  be  ascertained 
with  reasonable  precision,  or  it  cannot 
be  carried  into  effect."  The  same 
view  was  taken  in  Soles  v.  Hickman, 
8  Harris,  180,  and  a  writing  which 
specified  the  lot  sold,  and  acknow- 
ledged the  receipt  of  part  of  the  pur- 
chase-money, but  failed  to  state  the 
price,  or  the  time  at  which  it  was  pay- 
able, held  iusufiicient  to  warrant  a 
decree  for  specific  performance. 

It  may  be  proper,  before  taking 
leave  of  the  questions  connected  with 
the  admissibility  of  parol  evidence,  to 
create  or  modify  interests  or  estates  in 
land,  to  advert  to  the  doctrine  of  re- 
sulting trusts.  Trusts  resulting  by 
operation  of  law,  which  must  be 
construed  in  the  general  sense  in 
which  law  includes  equity,  are  ex- 
pressly excepted  from  the  operation  of 
the  Statute  of  Frauds,  and  the  excep- 
tion covers  a  large  and  increasing  class 
of  cases.  Thus  parol  evidence  is  un- 
doubtedly admissible,  both  under  that 
statute,  and  on  general  principles,  as 
settled  before  the  statute,  to  show 
that  the  consideration  of  a  deed  moved 
from  the  complainant,  and  not  from 
the  grantee,  and  thus  establish  a  trust 
in  favor  of  the  former;  Boyd  v. 
3PLean,  1  Johnson,  Ch.  582 ;  Root 
V.  BlaJce,  14  Pick.  271;  Borsey  v. 
Clarke,  4  Harris  &  Johnson,  551; 
Elliott  V.  Armstrong,  2  Blackford, 
198;  Jenison  v.  Graves,  lb.  440; 
Garrett  v.  Garrett,  1  Strobhart,  Eq. 
96;  Doyle  v.  Sleeper,  1  Dana,  531: 
although,  even  here,  the  trust  must 
result  from  the  facts  as  proved,  and  if 
they  are  not  sufficient  to  give  it  birth, 
it  cannot  be  established  by  evidence 
of  verbal  declarations  or  agreements ; 
Botsford  V.  Burr,  2  Johnson,  Ch. 
405;  Doic  v.  Jewell,  1  Foster,  470. 


'12 


SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 


But  if  the  existence  of  the  trust  he 
once  proved,  by  proving  the  necessary 
facts,  or  by  written  evidence,  parol 
evidence  is  admissible  to  ascertain  and 
define  its  nature  and  operation ;  Crrpps 
V.  Jee,  4  Brown,  Ch.  472. 

It  is  a  question  of  much  nicety,  to 
determine  what  facts  are  sufficient  to 
give  rise  to  a  trust,  by  operation  of 
law.  An  undoubted  instance  of  this 
sort  of  trust  arises,  where  a  convey- 
ance is  made  to  one  man,  and  the  pur- 
chase-money paid  by  another,  which 
may  be  shown  by  parol,  in  opposition 
to  the  recital  or  averments  in  the 
deed ;  Scohy  v.  Blanchard,  3  New 
Hampshire,  170;  PntchardY.  Broun, 
4  Id.  397;  Pemlroke  v.  AUenstown, 
1  Foster,  107 ;  Dewey  v.  Long^  25 
Vermont,  564 ;  Depeyster  v.  GoxiJd,  2 
Green,  Ch.  474  ;  Jackson  v.  Mills,  13 
Johnson,  4G3  )  Boyd  v.  McLean,  ante, 
vol.  1.  p.  272;  Botsford  v.  Burr, 
Johnson,  Ch-  405.  But  in  Botsford 
V.  Burr,  it  was  decided,  that  to  create 
such  a  trust,  the  payment  must  be 
made  with  or  out  of  the  funds  of  the 
cestui  (jue  trust,  and  not  merely  on  his 
account  by  the  trustee.  It  is,  how- 
ever, well  settled,  that  a  trust  will 
arise,  whenever  the  purchase  is  made 
with  the  money  of  the  cestui  que  trust, 
although  paid  by  the  trustee;  Sea- 
man V.  Cook,  14  Illinois,  501 ;  Scohy 
r.  Blanchard,  3  New  Hampshire, 
170  ;  Pritchard  v.  Brown,  4  Id.  3!)7  ; 
and  with  money  advanced  or  loaned 
by  him  at  or  before  the  time  of  the 
payment;  Ferguson  v.  Sufphen,  3 
Grilman,  547;  Coates  v.  Woodworth, 
13  Illinois,  654 :  and  in  'Page  y. 
Page,  8  New  Hampshire,  1S7,  the 
court  went  the  length  of  deciding, 
that  it  might  grow  out  of  a  purchase 
by  the  trustee  with  his  own   money, 


when  he  took  the  notes  of  the  cestici 
que  trust  payable  at  a  future  day,  for 
the  amount ;  so  that  the  transaction 
was  in  substance  a  loan  to  the  latter, 
for  the  purpose  of  the  purchase.  So 
it  has  been  decided,  that  where  an 
agent  employed  to  make  a  purchase, 
pays  with  the  money  of  his  principal, 
and  takes  the  conveyance  in  his  own 
name,  equity  will  decree  a  trust  in 
favor  of  the  principal;  Jackson  v. 
Woods,  1  Johnson's  Cases,  163 ; 
Foote  V.  Colvin,  3  Johnson,  216; 
Odder  v.  Walker,  2  Harris  &  Gill, 
323 ;  Willink  v.  Vanderveer,  1  Bar- 
bour, S.  C.  599;  Depeystery.  Gotdd, 
2  Green,  Ch.  474.  The  payment 
need  not  be  in  cash,  but  may  be  made 
in  negotiable  securites,  or  in  anything 
else  which  has  value,  and  might  have 
been  turned  into  money;  the  equity 
arising  from  the  right  of  the  cestui 
que  trust,  to  follow  his  property  into 
the  new  form  into  which  it  has  been 
converted;  Lounshury  v.  Purdy,  16 
Barbour,  376. 

But  it  is  well  settled  that  the  trust 
must  grow  out  of  the  facts  existing  at 
the  time  of  the  conveyance,  and  can- 
not grow  out  of  a  parol  agreement, 
that  the  purchase  shall  be  for  the 
benefit  of  another,  although  followed 
by  a  subsequent  payment  or  advance 
by  the  latter  to  the  grantee ;  Sfeere  v. 
Steere,  5  Johnson,  Ch.  1 ;  Botsford  v. 
Burr,  2  Id.  405 ;  Graves  v.  Dugan,  6 
Dana,  231 ;  Fox  v.  Ilcffner,  1  W.  &  S. 
372;  Stephenson  v.  Thompson,  13  Il- 
linois, 1(S6;  Peeve  v.  Straicn,  14  Id. 
94 ;  Jlollida  v.  Shoope,  4  Maryland^ 
465.  Nor  can  it  arise  from  a  mere 
payment  of  purchase-money  without  a 
deed,  or  out  of  any  thing  short  of  a 
conveyance,  and  cotemporancuus  cir- 
cumstances ii:iving  a  difl'ercut  direction 


WOOLLAM     V.     HEARN. 


713 


to  the  equitable  title,  from  that  taken 
by  the  legal  title ;  Jackson  v.  Morse, 
16  Johnson,  197  ;  ante,  vol.  1,  p.  274. 
It  is  well  settled  that  where  a  con- 
veyance to  one  man,  paid  for  with  the 
money  of  another,  is  meant  at  the 
time  as  a  purchase  for  the  latter,  the 
trust  will  extend  to  the  whole  equit- 
able estate  in  the  land  purchased. 
But  there  is  some  uncertainty  as  to 
the  effect  of  a  purchase  by  an  agent 
or  trustee,  with  the  money  of  the  prin- 
cipal or  cestui  que  trust,  for  his  own 
benefit,  and  in  violation  of  the  duties 
imposed  by  the  trust  or  agency.  There 
is  no  doubt  that  upon  sufficient  proof, 
the  money  may  be  followed  into  the 
land,  so  as  to  give  the  cestui  que  trust 
a  lien  upon  it,  with  a  right  of  sale  for 
repayment;  Balgney  v.  Hamilton,  1 
Ambler,  414 ;  Lane  v.  Digidon,  lb. 
409 ;  but  the  weight  of  authority 
would  seem  formerly  to  have  been, 
that  equity  would  not  go  further,  nor 
decree  a  resulting  trust;  Lench  v. 
Lench,  10  Vesey,  .511;  17  Id,  58; 
Wallace  v.  DuffieM,  2  S.  &  R.  521, 
529;  Hovenden  on  Frauds,  vol.  1,  468. 
"  A  resulting  trust,  properly  so  called," 
said  Gibson,  J.,  in  Wallace  v.  Dujield, 
*<  arises  where  the  purchaser  of  land 
pays  the  purchase-money,  but  takes 
the  conveyance  in  another  person's 
name;  but  where  a  trustee  purchases 
with  the  trust  fund,  and  takes  the 
conveyance  in  his  own  name,  there 
is,  properly  speaking,  no  resulting 
trust,  though  it  is  usually  called  so ; 
for  there  is  in  equity  a  very  substan- 
tial difference  between  them,  both  in 
the  quality  and  extent  of  the  relief 
that  can  be  called  for.  In  the  former, 
the  trustee  will  be  compelled  to  exe- 
cute the  trust  by  a  conveyance  of  the 
land;    in    the    latter,    chancery    will 


raise  the  money  out  of  the  land,  by  a 
sale  of  the  whole,  or  such  part  of  it  as 
may  be  necessary  to  produce  the  sum 
withdrawn  from  the  trust ;  and  this 
mode  is  peculiarly  convenient,  where 
only  a  part  of  the  consideration  has 
been  taken  from  the  trust  fund.  In 
Kirk  V.  Webb,  Prec.  in  Ch.  84,  and 
Halcott  V.  Markhans,  Prec.  in  Ch. 
168,  it  was  said  money  has  no  ear- 
mark, and  that  chancery  cannot,  there- 
fore, follow  it  into  the  land  where  it 
has  been  invested ;  but  it  is  certainly 
law,  that  it  may  be  pursued,  when  the 
purchaser  stood  as  a  tmstee  in  relation 
to  the  fund.  This  was  decided  in  Deg 
V.  Deg,  2  P.  Wms.  414 ;  and  in  one 
or  two  English  cases  since  the  revolu- 
tion, in  which  it  was  held  the  owner 
of  the  trust  fund  had  a  specific  lien." 
This  distinction  is  now,  however,  ge- 
nerally disregarded,  and  the  owner  of 
a  fund  which  has  been  converted  into 
land,  wrongfully,  without  his  sanction, 
held  entitled  to  demand  either  the 
money  or  the  land,  at  his  option  ;  thus 
giving  him  the  benefit  of  the  pur- 
chase, if  advantageous,  and  throwing 
the  risk  of  loss,  as  far  as  possible,  on 
the  trustee;  Oliver  v.  Piatt,  3  Howard, 
333  ;  Seaman  v.  Cooke,  14  Illinois, 
301 ;  The  Methodist  Episcopal Chiaxh 
V.  Jaques,  1  Johnson,  Ch.  450;  Phil- 
lips v.  Cramond,  2  W.  C.  C.  R.  441; 
Williams  V.  HoUingsicorth,  1  Strob- 
hart,  Eq.  103;  ante,  vol.  1,  p.  277. 

A  remarkable  instance  of  this  form 
of  trust  arises,  where  partnership 
funds  are  invested  in  real  estate. 
Partners  stand  in  a  fiduciary  relation 
to  each  other,  although  not  technically 
speaking,  in  that  of  trustees.  Hence, 
purchases  of  land,  made  for  partner- 
ship purposes,  and  conveyed  to  one  of 
the  partners,  will  be  treated  in  equity 


714 


SPECIFIC     PEJRFORMANCE.  —  PAROL     EVIDENCE. 


as  a  trust  for  the  partnership  ;  Dyer 
V.  Clark,  5  Metcalf,  562  ;  Howard  v. 
Priest,  lb.  582 ;  M^Dermot  v.  Laio- 
rence,  7  S.  &  R.  438  ;  Pierce's  Adm'r 
V.  Tri(jg's  Heirs,  10  Leigh,  408;  Hart 
V.  Haskins,  3  Bibb,  586 ;  Jarvis  v. 
Brool-s,  7  Foster,  37  ;  Coder  v.  Hul- 
ing,  3  Casey,  84;  Hoxie\.  Carr,  1  Sum- 
ner,173 ;  1  Am.  Lead.Cas. 4th  ed. 494; 
ante,  vol.  1  p.  240 ;  and  the  same  re- 
sult will  follow,  where  the  funds  of  the 
firm,  are  expended  by  a  partner  in  a 
purchase  for  his  own  benefit;  PhiUlps 
V.  Cramond,  2  W.  C.  C  R.  441 ;  Jar- 
vis  V.  Broolcs,  7  Foster,  37.  It  would 
seem,  moreover,  that  the  cases  which 
hold  that  an  absolute  conveyance  may 
be  converted  into  a  mortgage,  by  parol 
evidence,  are  also  to  be  explained  on 
the  ground  of  an  implied  trust,  aris- 
ing out  of  the  defeasible  nature  of  the 
consideration ;  joost,  note  to  Howard 
v.  Harris. 

In  the  cases  above  considered,  the 
source  of  the  consideration  formed  an 
essential  ingredient  in  the  creation  of 
the  trust,  but  there  are  others,  in  which 
a  trust  is  held  to  result  from  the  rela- 
tive position  of  the  parties,  at  the  time 
of  the  conveyance,  even  when  the  pur- 
chaser has  paid  a  full  consideration. 
Thus  it  is  well  settled,  that  purchases 
by  executors  or  trustees  with  their  own 
money,  of  property  within  the  scope 
of  their  ofiicial  duties,  will  be  convert- 
ed into  trusts,  at  the  election  of  the 
parties  whose  interests  they  represent; 
ante,  vol.  1,  p.  208.  And  the  same 
rule  seems  to  apply  to  purchases  made 
by  an  agent  in  matters  intrusted  to 
his  agency;  Lee  v.  Nuttalt,  1  Ilus- 
sell  k  INIyine,  53  ;  2  INIylne  k  Keene, 
819  ;  ^iceet  v.  Jacorks,  1  Paige,  335; 
Rogers  v.  Pass,  4  Johnson,  Ch.  118; 
although  it  has  been  said,  that  to  pro- 


duce this  result,  the  agency  must  be 
proved  by  written  evidence,  and  not 
rest  solely  on  the  testimony  of  wit- 
nesses, which  would  let  in  the  evil 
which  the  Statute  of  Frauds  was 
meant  to  obviate ;  ante,  vol.  1,  p.  220 ; 
Bartlett  v.  PichersgiU,  1  Eden,  515 ; 
4  East,  577,  n,  (b). 

It  has  also  been  held  in  a  great 
number  of  instances,  that  whenever 
the  legal  title  to  an  estate  is  procured 
through  the  means  of  an  actual  or 
constructive  fraud,  equity  will  give 
relief  to  the  party  defrauded,  not  only 
negatively,  by  setting  aside  the  devise 
or  conveyance,  but  afiirmatively,  by 
giving  the  estate  the  direction  which 
it  would  have  taken,  had  the  fraud 
not  been  committed;  Broicn  v.  Lynch, 
1  Paige,  147  ;  Perkins  v.  Hays,  1 
Cooke,  166;  Howell  v.  Baker,  4 
Johnson,  Ch.  118;  Jenkins  v.  Eld- 
rege,  3  Story,  181 ;  Pickett  v.  Log- 
gon,  14  Vesey,  215;  Podmore  v. 
Gunning,  5  Simons,  485;  Hoge  v. 
Hoge,  1  Watts,  163.  It  has,  indeed, 
been  intimated,  that  the  relief  given 
in  this  class  of  cases  should  be  limit- 
ed, to  setting  aside  the  fraudulent  act 
or  conveyance,  and  restoring  the  pro- 
perty to  the  source  from  whence  it 
came.  But  the  better  opinion  would 
seem  to  be,  that  when  a  benefit  in- 
tended for  one  man  is  wrongfully  inter- 
cepted by  another,  the  remedy  should 
not  stop  short  of  a  full  compensation 
to  the  injured  party,  which  can  only 
be  afforded  by  giving  the  transaction 
the  eff'ect  which  it  was  originally 
meant  to  have,  and  decreeing  a  trust 
in  his  favor.  In  other  words,  the  in- 
tervention of  fraud  is  a  reason  not  for 
the  cancellation  of  all  that  has  been 
done,  but  of  so  much  only  as  the 
fraud  has  vitiated,  and  for   putting 


WOOLLAM     V.     HEARN. 


715 


the  residue  in  the  shape  it  would  have 
assumed,  had  no  fraud  been  commit- 
ted. 

Some  doubt  exists,  as  to  how  far 
parol  evidence  is  admissible,  to  give 
rise  to  a  trust,  by  disproving  the  con- 
sideration of  a  conveyance.  It  is  well 
settled,  that  the  considerationof  a  deed 
of  bargain  and  sale  cannot  be  denied, 
for  the  purpose  of  defeating  it  as  a 
conveyance,  and  preventing  it  from 
taking  effect  on  the  legal  title  of  the 
bargainor ;  Allison  v.  Kurtz,  2  Watts, 
187.  As  to  this,  the  conclusion  is 
absolute,  and  extends  not  only  to  par- 
ties and  privies,  but  like  that  of  a  fine, 
to  all  the  world.  But  this  estoppel  is 
peculiar  to  that  mode  of  conveyance, 
and  has  no  bearing  on  the  question, 
how  far  the  actual  consideration  of 
deeds  of  bargain  and  sale,  and  other 
assurances,  is  open  to  investigation. 
There  is  no  doubt  that  evidence  may 
be  given,  of  the  absence  of  real  or 
substantial  consideration  for  a  deed, 
whenever  it  is  not  inconsistent  with  the 
terms  of  the  deed.  When,  therefore, 
a  deed  sets  forth  a  nominal  considera- 
tion, either  party  may  disprove  the 
existence  of  an  actual  consideration. 
And  where  a  substantial  consideration 
is  averred,  it  may  be  shown  that  the 
value  of  the  land  exceeds  that  of  the 
consideration,  and  that  as  to  the  ex- 
cess, the  transaction  was  a  mere  gift 
or  advancement ;  Hat/don  v.  Mentzer, 
10  S.  &  R.  329.  But  where  the  deed 
recites  a  full  and  substantial  conside- 
ration, evidence  cannot  be  given  to 
contradict  the  recital,  unless  it  is 
shown  to  have  found  its  way  into  the 
instrument  through  fraud  or  mistake; 
WiUcinson  v.  Wilkinson,  2  Devereux, 
Equity,  376 ;  Morris  v.  Morris,  2 
Bibb,  311 ;  Movan  v.  Hays,  1  John- 


son, Ch.  339  ;  when  parol  evidence 
will,  of  course,  be  admissible  for  the 
purpose  of  establishing  the  existence 
of  the  fraud,  and  proving  the  true  na- 
ture and  character  of  the  transaction ; 
Hutchinson  v.  Tindall,  2  Green,  Ch. 
357  ;  Slocum  v.  Marshall,  2  W.  C.  C. 
R.  397;  Kennedy' s  Heirs  \ .  Kennedy's 
Heirs,  2  Alabama,  571.  And  a  recital 
of  the  consideration  of  a  conveyance 
may  always  be  contradicted,  for  the 
purpose  of  raising  a  trust,  by  operation 
of  law,  in  favor  of  a  stranger  to  the 
instrument,  for  estoppels  only  bind 
parties  and  privies,  and  do  not  extend 
to  third  persons;  Livermore  v.  Al- 
drich,  5  Gushing,  431. 

The  effect  of  disproving  the  con- 
sideration of  a  conveyance,  by  parol 
evidence  of  fraud  or  mistake,  cannot 
go  beyond  the  limits  imposed  by  the 
Statute  of  Frauds,  on  the  operation 
of  such  evidence.  It  may  avoid  the 
conveyance,  by  showing  a  wrong  prac- 
tised on  the  grantor,  and  an  absence 
of  equitable  right  in  the  grantee ; 
Kennedy's  Heirs  v.  Kennedy's  Heirs, 
2  Alabama,  576;  Hutchinson  v.  Tin- 
dall, 2  Green,  Ch.  357 ;  Slocum  v. 
Marshall,  2  W.  C.  C  R.  391 ;  Pick- 
ett V.  Loggon,  14  Vesey,  215.  And 
it  may  perhaps  even  give  rise  to  a  re- 
sulting trust,  in  favor  of  the  grantor ; 
Hutchinson  v.  Tindall,  2  Green,  Ch. 
357.  But  failure  or  want  of  a  conside- 
ration, cannot  give  rise  to  a  trust  in  fa- 
vor of  a  third  person,  unless  coupled 
with  proof  of  fraud  in  other  particulars, 
for  such  a  trust  cannot  be  established 
without  resorting  to  the  declarations 
or  agreement  of  the  parties,  in  order 
to  ascertain  the  beneficiary ;  Rohson 
V.  Harwell,  6  Georgia,  589 ;  Hutch- 
inson V.  Tindall,  2  Green,  Ch.  357. 

It  might  have  been  supposed,  that 


716 


SPECIFIC     PERFORMANCE. — PAROL     EVIDEXCE. 


theeffectof  disproving  the  existence  of 
a  consideration  for  a  conveyance  by 
feoffment,  or  by  any  other  form  of  as- 
surance, capable  of  passing  the  legal 
title  without  consideration,  would  have 
been  to  raise  the  presumption  of  a  gift 
to  the  grantee,  subject  to  be  rebutted 
by  parol  evidence,  that  it  was  intend- 
ed as  a  trust  for  the  grantor.  But  it 
was  well  settled  in  the  case  of  a  feoff- 
ment, that  proof  of  the  want  of  con- 
sideration gave  rise  to  a  resulting 
trust  by  implication  of  law.  And  it 
seems  to  have  been  thought  in  Hutch- 
inson V.  Tindall,  that  evidence  of  a 
want  of  consideration  should  have  the 
same  effect  in  deeds  operating  under 
the  Statute  of  Frauds,  as  in  the  case 
of  a  feoffment;  while  a  similar  opinion 
is  expressed  in  1  Cruise,  Dig.  tit. 
12,  ch.  1,  sect.  52,  and  the  case  of 
The  Duke  of  Norfolk  v.  Broicn, 
Prec.  Ch.  80,  cited  in  its  support. 
But  the  better  opinion  would  seem  to 
be,  that  a  resulting  trust  cannot  be 
deduced  from  any  deed,  which  de- 
clares or  raises  a  use  in  favor  of  the 
grantee,  merely  by  proof  of  the  want 
or  absence  of  consideration  ;  because 
such  a  trust  is  at  variance  with  the  use, 
and  consequently  tends  to  contradict 
and  falsify  the  operation  of  the  deed  j 
Hill  on  Trustees,  lOG;  Story's  Eq. 
Jurisprudence,  sect.  1199;  Graves 
V.  Graves,  9  Foster,  129;  4  Kent, 
Com.  30G.  It  was  accordingly  held 
in  Leman  v.  Whitlej/,  4  llussell,  423, 
that  a  trust  could  not  be  raised  in 
favor  of  the  grantor,  by  proving  that 
no  consideration  had  moved  from  the 
grantee.  In  that  case  the  "deed  re- 
cited a  full  and  actual  consideration, 
and  as  there  was  nothing  to  show, 
that  the  recital  had  been  introduced 
through  fraud   or  mistake,  the  evi- 


dence was  inadmissible  on  general 
principles,  apart  from  the  Statute  of 
Frauds.  But  the  court  went  on  the 
ground,  that  it  would  be  inconsistent 
with  the  statute,  to  receive  evidence 
to  vaiy  the  character  of  the  instru- 
ment, by  proving  it  to  be  a  mere 
voluntary  conveyance,  instead  of  a 
sale  for  value.  This  decision  was  fol- 
lowed in  Squire  v.  Herder,  1  Paige, 
494;  Rathhun  v.  Rathhun,  6  Barbour, 
S.  C.  98,  and  Philhrook  v.  Delano, 
29  Maine,  410,  where  it  was  said,  that 
if  a  resulting  trust  could  be  raised,  by 
proving  the  absence  of  actual  consi- 
deration under  any  circumstances,  it 
could  not,  where  the  deed  contained 
a  covenant  warranting  the  land  to  the 
grantee.  It  was  held,  notwithstand- 
ing, in  Leman  v.  Whitlei/,  that  the 
non-payment  of  the  consideration 
might  be  proved,  although  its  non- 
existence could  not,  and  that  equity 
would  give  the  grantor  a  lien  on  the 
land,  for  the  amount  due  on  the  face 
of  the  deed,  although  it  could  not  go 
behind  it,  and  decree  a  trust  in  the 
land  itself.  Tbe  distinction  is  obvi- 
ous, between  a  denial  of  the  payment 
of  the  consideration,  and  of  its  exist- 
ence, for  while  the  one  goes  to  change 
the  nature  and  operation  of  the  instru- 
ment, and  converts  it  from  a  sale  into 
a  gift  or  voluntary  conveyance,  the 
other  merely  proves  the  continued  ex- 
istence of  a  pecuniary  liability,  which 
•was prima  facie  extinguished;  Tho- 
mas V.  31'  Cormick,  9  Dana,  108.  In 
a  note  to  Story's  Equity,  vol.  2,  sect. 
1199,  Leman  v.  Whiilc^,  is  said  to 
stand  on  the  utmost  verge  of  the  doc- 
trine, that  oral  testimony  is  inadmis- 
sible to  prove  a  trust ;  but  it  is  fully 
sustained  by  the  interpretation  given 
to  the  statute  in  most  of,  if  not  all,  the 


WOOLLAM     V.     HEARN. 


717 


instances  in  wliicli  tlie  question  has 
arisen,  either  in  England  or  this  coun- 
try; Wilkinson  \.WilMnson ;  Squire 
V.  Harder;  Philhrook  v.  Delano; 
and  the  case  of  Balbeck  v.  Donald- 
son, 6  American  Law  Register,  148, 
follows  in  the  same  direction,  by  de- 
ciding that  absence  of  consideration, 
will  not  raise  a  resulting  trust,  even 
when  the  land  remains  in  the  posses- 
sion of  the  grantor,  and  he  also  re- 
tains the  custody  of  the  deed  by  which 
it  is  conveyed;  the  rule  being  said  to 
be,  that  if  the  deed  is  delivered,  the 
intention  of  the  parties  must  be  sought 
in  it,  and  not  in  extrinsic  facts  or  cir- 
cumstances. And  the  result  of  the 
authorities  would  seem  to  be,  that  a 
trust  cannot  be  superinduced  on  a  con- 
veyance which  purports  to  have  been 
made  for  a  valuable  consideration,  by 
proof  that  no  consideration  was  given, 
even  when  coupled  with  other  cir- 
cumstances or  incidents,  of  a  nature 
to  show  that  the  conveyance  was  to 
be  limited  to  the  legal  title,  and  that 
the  whole  beneficial  interest  was  to  re- 
vest or  remain  in  the  grantor;  Hill 
on  Trustees,  112.  It  might,  however, 
have  been  presumed,  that  an  express 
oral  agreement,  coupled  with  a  want  of 
consideration,  would  render  the  gran- 
tee a  trustee  for  the  grantor,  in  Penn- 
sylvania, under  the  doctrine  of  Mur- 
phy V.  Iluhert,  7  Barr,  420 ;  had  it 
not  been  for  the  recent  case  of  Porter 
V.  Mayjield,  9  Harris,  263,  in  which 
the  point  was  decided  the  other  way. 
There  are  some  of  the  states  of  this 
country,  in  which  the  operation  of  the 
Statute  of  Frauds  is  confined  express- 
ly, or  by  judicial  interpretation,  to  con- 
tracts for  the  sale  or  conveyance  of  es- 
tates or  interests  in  land,  and  does  not 
extend  to  the  creation  or  origination 


of  trusts,  which  remain  as  they  were 
under  the  original  jurisdiction  of  equi- 
ty before  the  statute.  Such  is  the 
case  in  North  Carolina;  where  it  is 
accordingly  held,  that  proof  of  fraud 
in  obtaining  a  conveyance  of  land,  or 
perhaps  even  in  using  it  when  obtain- 
ed, will  make  the  grantee  a  trustee  for 
the  parties  defrauded  or  injured  by  the 
fraud;  Brown  v.  Clegg,  6  Iredell, 
Eq.  90;  Foy  v.  Foy,  2  Haywood, 
296  ;  Gay  v.  Hunt,  1  Murphy,  141. 
And  after  a  conflict  of  opinion,  if  not 
of  decision,  Peebles  v.  Reading,  8  S. 
&  R.  484;  German  v.  Gahhald,  3 
Binney,  304,  the  Supreme  Court  of 
Pennsylvania  have  given  the  same  in- 
terpretation to  the  act  of  assembly  of 
that  state ;  Murpliy  v.  Huhert,  7  Barr, 
420 ;  4  Harris,  60. 

A  resulting  trust  may,  therefore,  be 
set  up  in  Pennsylvania,  in  opposition 
to  an  absolutedeed,  by  proof  that  it  was 
made  without  consideration,  and  on 
the  faith  of  a  verbal  agreement  by  the 
grantee,  to  take  and  hold  the  laud  for 
the  benefit  of  the  grantor  and  his 
children,  or  of  third  persons ;  Murphy 
V.  Huhert ;  or  that  declarations  were 
made  at  the  time  of  purchasing  land 
sold  under  an  execution,  that  it 
should  be  held  in  trust  for  the 
owner,  by  which  he  and  his  friends 
were  prevented  from  bidding  against 
the  purchaser ;  Brown  v.  Dysinger,  1 
Rawle,  408  ;  or  in  general  by  evidence 
of  any  circumstances,  rendering  it 
unconscientious  for  the  defendant  to 
hold  the  land  as  against  the  complain- 
ant. 

The  course  of  decision  introduced 
or  established  by  the  case  of  Murj^hy 
v.  Hubert,  is  attended  by  many  irfcon- 
gruities  and  disadvantages,  and  among 
others,  with  that  of  drawing  a  not  very 


718 


SPECIFIC     PERFORMANCE.  —  PAROL     EVIDENCE. 


intelligible  distinction  between  tlie 
creation  and  the  transfer  of  equitable 
estates  or  interests  in  land,  which  has 
no  real  existence  either  in  fact,  or  in 
point  of  technical  and  conventional 
principle.  Payment  of  the  pui'chase- 
money,  in  pursuance  of  an  oral  agree- 
ment for  the  sale  of  land,  would,  un- 
questionably, have  rendered  the  ven- 
dor a  trustee  for  the  vendee,  and  made 
it  the  duty  of  equity  to  decree  a  con- 
veyance before  the  statute;  and  yet  it 
is  as  well  settled  in  Pennsylvania,  as  it 
is  elsewhere,  that  such  a  payment  con- 
fers no  estate  or  interest  on  the  ven- 
dee, under  the  statute,  and  that  his 
only  remedy  lies  in  a  suit  to  recover 
back  the  purchase-money;  ante,  vol.  1, 
p.  739;  thus  showing  that  the  statutory 
provision  applies  to  the  origination  of 
trusts,  as  well  as  to  their  transmission. 
If  an  express  agreement  that  land 
shall  cease  to  be  the  property  of  one 
man,  and  become  that  of  another,  fol- 
lowed by  the  payment  of  value  on  the 
faith  of  the  agreement,  will  not  give 
rise  to  a  trust,  or  warrant  a  decree 
for  specific  performance;  Moore  v. 
Smith,  7  Harris,  4G7;  how  can  it 
arise  from  an  agreement  that  a  con- 
veyance, absolute  on  its  face,  shall  be 
held  or  used  for  the  benefit  of  the 
grantor,  in  direct  opposition  to  the 
plain  tenor  of  the  instrument,  especi- 
ally when,  as  in  Murphy  \.  Hubert,  the 
deed  purports  to  be,  and  indeed  is, 
made  for  a  valuable  consideration,  in 
the  shape  of  a  bond  given  by  the 
grantee;  and  the  case  of  the  complain- 
ant is,  tlierefore,  not  only  unsustained 
by  written  evidence,  but  contradicted 
by  the  writings  which  actually  exist. 
The  difficulty  of  reconciling  the  deci- 
sions in  Pennsylvania  with  each  other, 
and  with   principle,  is  increased   by 


the  cases  of  BJi/hoMer  v.  Gihon,  6 
Harris,  134,  and  Morey  v.  Ilerrick, 
lb.  123,  128,  which  take  the  ground, 
that  a  trust  cannot  grow  out  of  a  pro- 
mise or  assurance  that  the  estate 
granted  shall  be  held  for  the  use  or 
benefit  of  a  third  person,  unless  the 
latter  is,  in  some  way,  a  privy  to  or 
participant  in  the  transaction.  The 
proposition  thus  laid  down  is  question- 
able, because  equity  may  always  re- 
lieve, when  a  benefit  intended  for  one 
man,  is  intercepted  by  the  fraud  of 
another,  by  decreeing  a  trust  and  com- 
pelling the  guilty  party  to  carry  it 
into  execution ;  Brown  v.  Lynch,  1 
Paige,  147 ;  Anderson  v.  Lemon,  4 
Sandford,  552;  4  Selden,  236;  and 
would  seem  singularly  at  variance  with 
3Iurphy  V.  Hubert,  unless  it  can  be 
said  that  a  promise  to  take  as  trustee 
for  A.  if  B.  will  convey,  has  less  force, 
or  falls  more  immediately  within  the 
statute,  than  a  promise  to  hold  in  trust 
for  B.  If  there  be  any  diff"erence,  it 
would  seem  to  be  on  the  side  of  those 
cases  where  the  trust  is  for  the  benefit 
of  a  third  party,  who  is  ignorant  of 
the  transaction,  and  has  no  means  of 
protecting  his  interests  by  having  the 
trust  reduced  to  writing,  which  cannot 
be  said  where  a  grantor  chooses  to 
rely  on  an  oral  promise  that  a  deed, 
which  purports  to  pass  the  whole  es- 
tate in  the  land,  shall  be  limited  in  its 
efiect  to  the  legal  title,  and  leave  the 
beneficial  interest  exactly  where  it 
was  before.  It  has  been  repeatedly 
held,  that  to  procure  a  devise  by  a 
promise  to  hold  the  land  in  question, 
wholly  or  in  part  for  the  benefit  of 
another,  is  a  fraud  which  takes  the 
case  out  of  the  statute;  Oldham  v. 
Litchfield,  2  Vernon,  50G ;  Thynn  v. 
Thynn,  1   Id.   296;   Uuge  v.   JToye, 


W  0  0  L  L  A  M     V.     n  E  A  R  N. 


719 


1  "Watts,  215 ;  and  this  principle  ap- 
plies equally  where  a  contrivance  of 
the  same  nature  is  used  as  the  means  of 
obtaining  a  grant.  We  may  therefore 
doubt,  with  reason,  whether  the  statute 
was  correctly  interpreted  in  Alurpluj  v. 
Hubert  J  and  an  attentive  examination 
will  show  that  the  prior  decisions  on 
which  that  case  professes  to  be  founded, 
may  all  be  referred  to  some  one  of  the 
heads  which  equi  ty  views  as  exceptions 
to  the  restrictions  of  the  statute ;  ante; 
Morey  v.  Herrick,  6  Harris,  123, 128; 
and  that  none  of  them  are  a  warrant 
for  the  proposition,  that  trusts,  or  in 
other  words,  equities,  fall  without  its 
operation  in  Pennsylvania,  either  in 
their  birth  or  subsequent  transmission. 
It  is  evident,  that  the  relaxation 
of  the  restraints  imposed  by  the 
Statute  of  Frauds,  in  Pennsylvania 
and  North  Carolina,  ought  not  to 
induce  a  disregard  of  the  ordinary 
rules  of  evidence.  In  Wilkinson 
V.  Wilkinson,  2  Dev.  Equity,  376, 
parol  evidence  was  said  to  be  admis- 
sible, to  show  that  a  deed  expressing 
a  full  and  valuable  consideration,  was 
made  without  consideration,  and  thus 
change  the  effect  of  the  instrument 
into  a  trust  or  advancement  instead  of 
a  purchase.  But  it  was  decided  that 
such  evidence  can  only  be  admitted, 
when  a  proper  ground  is  laid  for  its 
admission,  by  proving  that  the  inser- 
tion of  the  clause  setting  forth  the 
consideration,  was  the  result  of  fraud 
or  mistake,  and  that  when  this  is  not 
shown,  it  will  be  presumed  to  have 
been  introduced  into  the  instrument 
with  the  assent  of  the  vendor,  and  will 
be  beyond  the  reach  of  parol  evidence. 
Similar  views  were  expressed  as  to 
the  inadmissibility  of  parol  evidence, 
not  grounded  on  fraud,  in  the  cases 


of  Franklin  v.  Roherts,  2  Iredell, 
Equity,  560 ;  and  Kelhj  v.  Bryan, 
6  Id.  283.  In  Pennsylvania,  how- 
ever, the  breach  of  a  verbal  promise, 
on  the  faith  of  which  a  written  agree- 
ment was  executed,  is  sufficient  evi- 
dence of  fraud  to  let  in  parol  evidence, 
not  merely  to  control  the  agreement 
and  establish  a  trust,  but  even  as  it 
would  seem  to  take  the  case  out  of 
those  provisions  of  the  Statute  of 
Frauds,  which  prohibit  the  sale  or 
grant  of  an  interest  or  an  estate  in 
land  by  parol  j  ante,  677 ',  and  it  is, 
therefore,  important  to  know  whether 
this  innovation  on  the  rules  of  evi- 
dence, extends  to  the  consideration  of 
a  deed,  and  will  enable  the  parties, 
and  those  who  claim  under  them,  to 
show  that  a  transaction  is  voluntary, 
which  they  mutually  agreed  should  be 
set  forth  and  described  as  a  purchase 
for  value. 

It  has  already  been  stated,  that  the 
absence  of  consideration  for  a  feoff- 
ment, gave  rise  to  a  resulting  trust  by 
legal  implication.  But  it  seems  that 
the  law  would  not  raise  such  a  trust 
even  before  the  statute,  from  evidence 
of  the  want  of  consideration,  for  a 
deed  which  expressed  either  a  nominal 
consideration,  or  declared  a  use  in  the 
grantee.  And  there  can  be  no  doubt, 
apart  from  all  reference  to  the  statute, 
that  where  a  deed  sets  forth  an  actual 
and  not  merely  a  nominal  considera- 
tion, evidence  is  inadmissible  to  con- 
tradict the  consideration.  For  such 
evidence  not  merely  contradicts  the 
deed,  but  varies  its  nature  and  opera- 
tion, by  converting  it  from  a  convey- 
ance for  value,  into  what  the  law  re- 
gards with  a  very  different  eye,  a 
voluntary  conveyance.  In  Wilkinson 
v.  Wilkinson,  2  Dev.  Eq.  376,  evi- 


i20 


SPECIFIC     PERFORMANCE. — PAROL     EVIDENCE. 


dence  contradictiug  the  consideration 
of  a  deed,  was  rejected  on  this  ground, 
although  it  would  have  been  admitted, 
had  the  deed  expressed  no  considera- 
tion or  a  consideration  merely  nominal. 
In  Murphy  v.  Hubert,  7  Barr,  420 ; 
C  Harris,  50,  evidence  was  admitted 
of  the  absence  of  consideration,  and 
of  the  parol  declarations  of  the  parties, 
to  raise  a  resulting  trust  in  favor  of  the 
grantor,  and  of  those  claiming  under 
him,  the  trust  being  reserved  to  him 
and  to  his  children;  and  the  word  chil- 
dren  being,   apparently,    a   word   of 
limitation,  and  not  of  purchase.     The 
deed  seems  to  have  recited  the  ex- 
istence of  a  valuable   consideration, 
but  the    question    whether   this    re- 
cital could  be  contradicted,  and  the 
conveyance    shown   to   be   voluntary 
in  opposition   to   its   terms,  was  not 
raised  by  counsel  or  decided  by  the 
court;  and  the  point  thus  left  open, 
has  not  been  set  at  rest  on  any  subse- 
quent  occasion.     It   is  evident  that 
the  absence  of  statutory  restraints  on 
the  effect  of  parol  evidence,  should 
not   induce   the   relaxation  of  those 
which  the  common  law  imposes  on  its 
admission.     If  a  recital  which  pur- 
ports  to   express   the  foundation  on 
which  the   parties  to   a   conveyance 
have  contracted,  can  be  set  aside  with- 
out any  thing  to  show  that  it  was  in- 
troduced into  the  conveyance  without 
their  assent,  on  a  mere  allegation  that 
the  instrument  was  obtained  for  a  dif- 
ferent purpose  from  that  to  which  it 
was  applied,  there  is  an  end  of  all  sub- 
stantial   distinction   between   written 
and  parol  evidence.      And'  it  would 
seem  neither  reasonable  nor  consistent 
to  hold,  in  accordance  with  Balheck 
V.  Donaldson,  G  Amer.  Law  Keg.  148, 
that   the    most    persuasive   evidence 


that  a  conveyance  was  made  as  a  mere 
form,  for  the  convenience  of  the  gran- 
tor, and  without  any  purpose  of  vest- 
ing a  beneficial  interest  in  the  grantee, 
cannot  give  rise  to  a  resulting  trust, 
and  yet  allow  such  a  trust  to  be  es- 
tablished, by  calling  witnesses  to  prove 
oral  declarations  in  opposition  to  the 
terms  of  an  absolute  deed,  thus  expos- 
ing every  purchase  of  land  to  the  risk 
of  being  turned  into  a  trust  for  the 
seller. 

It  was  accordingly  held,  in  Porter 
V.    Mayfield,    9    Harris,    263,    that 
the  grantee  in  a  conveyance,  which 
purports    to    have    been    made    for 
value,  cannot  be  converted  into  a  trus- 
tee for  the  grantor,  by  proof  that  no 
value  was  in  fact  paid,  and  that  the 
conveyance  was  made  solely  for  the 
purpose  of  giving  birth  to  a  resulting 
trust.     The  court  said  that  the  end 
and  object  of  a  deed  is,  to  define  the 
mutual    rights    of    the   parties,    and 
that    it   consequently   could   not   be 
varied  or  falsified  in  any  controversy 
between  them,  or  when  they  alone  were 
concerned;    but   that  this  objection 
did  not  apply  when  third  persons  were 
in  question,  nor  preclude  the  right  to 
engraft  a  trust  for  a  stranger  by  parol 
evidence,   on  an   absolute   deed.     It 
seems,  however,  to  have  been  forgot- 
ten, that  a  deed  of  bargain  and  sale  is, 
if  not  a  contract,  at  least  the  expres- 
sion and  execution  of  what  the  par- 
ties have  resolved  and  agreed  to  do; 
and  that  if  a  trust  for  C.  can  be  fas- 
tened upon  a  conveyance  from  A.  to 
B.,  to  which  C.  is  not  a  party,  it  can 
only  be  by  virtue  of  the  contract  be- 
tween A.  and  B.,  which  should,  as  it 
would  seem,  be  sought  in  the  deed,  and 
not  out  of  it.    A  contract  inter  partes, 
may,  no  doubt,  give  rise  to  an  interest 


WOOLLAM     V.     HEARN. 


721 


in  a  third  person,  which  may  be  en- 
forced directly  by  the  beneficiary,  in 
equity  if  not  at  law;  2  American 
Lead.  Cases,  165,  4th  ed. ;  but  this, 
obviously,  cannot  rise  higher  than 
the  source  in  which  it  has  its  origin, 
and  should  not,  as  it  would  seem,  be 
permitted  to  go  further  in  proof,  or  be 
upheld  by  any  evidence,  which  would 
not  be  admissible  in  a  suit  upon  the 
contract,  by  those  between  whom  it 
was  made.  The  cases  of  Robertson 
V.  Eobertso7i,  9  Watts,  32  ;  Morey  v. 
Herrich,  6  Harris,  123,  128,  and  Gil- 
son  V.  BlyJiolder,  lb.  134,  accordingly 
establish,  that  a  promise  to  take  or 
hold  for  the  benefit  of  a  third  person, 
will  not  give  rise  to  a  trust  in  favor  of 
VOL.  II. — 46 


the  latter,  in  the  absence  of  actual  or 
constructive  fraud,  and  thus,  in  con- 
junction and  with  the  aid  of  Porter  v. 
Mayjield,  bring  back  the  law  to  where 
it  stood  before  Murphy  v.  Hubert: 
Porter  v.  Mayfield  cutting  off  oral 
trusts  for  the  grantor,  and  Blyholder 
v.  Gilson  raising  a  barrier  which  can 
hardly  be  overcome  when  third  parties 
are  in  question,  by  any  thing  short  of 
those  grounds,  which  are  universally 
held  to  supersede  the  ordinary  rules 
of  evidence,  and  justify  the  interven- 
tion of  equity  to  prevent  a  statute 
passed  for  the  prevention  of  fraud, 
from  being  used  as  a  means  for  its 
perpetration. 


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